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The 

NORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 



GENERAL STATUTES 



i\ 



PROPOSED RULES 

Auctioneers Licensing Board 

Environment, Health, and Natural Resources 

Human Resources 

Justice 

Opticians, Board of 

State Personnel 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



,»sECEiVEO 



SEP 9 1994 

LA'.V L155RARY 



ISSUE DATE: September 1, 1994 



Volume 9 • Issue 11 • Rages 780 - 876 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODF. 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains infonnation relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S.I 50B-2 1 .2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided firee of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh.N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 150B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
RegisterbefoK the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form pubUshed as part of the public notice, imtil the adopted 
version has been pubUshed in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue tempo 
rary rules. Within 24 hours of submission to OAH, the Codifier ol 
Rules must review the agency' s written statement of findings of neet 
for the temporary rule pursuant to the provisions in G.S. 150B-21.1. 1 
the Codifier determines that the findings meet the criteria in G.S 
150B-21.1, the rule is entered into the NCAC. If the Codifiei 
determines that the findings do not meet the criteria, the rule is returnee 
to the agency. The agency may supplement its findings and resubmi 
the temporary rule for an additional review or the agency may responc 
that it will remain with its initial position. The Codifier, thereafter, wil 
enter the rule into the NCAC. A temporary rule becomes effectiv« 
either when the Codifier of Rules enters the rule in the Code or on tlx 
sixth business day after the agency resubmits the rule without change 
The temporary rule i s in effect for the period specified in the rule or 1 8( 
days, whichever is less. An agency adopting a temporary rule mus 
begin rule-making procedures on the permanent rule at the same timi 
the temporary rule is filed with the Codifier. ^^U 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NC AQ is a compilatii 
and index of the administrative rules of 25 state agencies and 31 
occupational licensing boards. The NCAC comprises approximate!] 
15,(X)0 letter size, single spaced pages of material of which approxi 
mately 35% is changed annually. Compilation and publication of thi 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency i 
assigned a separate title which is further broken down by chaptei 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of tw( 
dollars and 50 cents ($2.50) for 10 pages or less, plus fifteei 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling i 
excess of 15, (XX) pages. It is supplemented monthly wit 
replacement pages. A one year subscription to the fill 
publication including supplements can be purchased fo 
seven hundred and fifty dollars ($750.00). Individual vol 
umes may also be purchased with supplement service. Re 
newal subscriptions for supplements to the initial publicatio 
are available. 

Requests for pages of rules or volumes of the NCAC should b 
directed to the Office of Administrative Hearings. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

TTie North Carolina Register is cited by volume, issue, pag 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Vohim 
1, Issue 1, pages 101 through 201 of theNorthCarolinaRegisterissM 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann HI, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
as. 125-11.13. 



ISSUE CONTENTS 



GENERAL STATUTES 

Chapter 150B 



780 



n. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Coastal Management 825 

DEM/ Air Quality 805 

Health Services 834 

Marine Fisheries 820 

Wildlife Resources 830 

Human Resources 
Social Services 802 

Justice 
Alarm Systems Licensing Board 804 

Private Protective Services 802 

Licensing Boards 
Auctioneers Licensing Board . . . 836 
Opticians, Board of 845 

State Personnel 
Office of State Personnel 847 

in. RRC OBJECTIONS 849 

rV. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 854 

Text of Selected Decisions 

93 EDC 0742 863 

94 ABC 0257 870 

V. CUMULATIVE INDEX 874 



NORTH CAROLINA REGISTER 

Publication Schedule 
(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


T ^st Day 

to Submit 

to RRC 


** EarUest 

Effective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Revised 03/94 



GENERAL STATUTES OF NORTH CAROLINA 



CHAPTER 150B 

THE ADMINISTRATIVE PROCEDURE ACT 

[The following excerpt contains the statutory provisions of the Administrative Procedure Act as amended by 
the 1994 Regular Session of the 1993 General Assembly, effective July 17, 1994 (§150B-21.18) and January 
1, 1995 (§150B-23(a)).] 



Article 1. 
General Provisions. 
§ 150B-1. Policy and scope. 

(a) Purpose. — This Chapter establishes a uni- 
form system of administrative rule making and 
adjudicatory procedures for agencies. The proce- 
dures ensure that the functions of rule making, 
investigation, advocacy, and adjudication are not 
all performed by the same person in the adminis- 
trative process. 

(b) Rights. — This Chapter confers procedural 
rights. 

(c) Full Exemptions. — This Chapter applies to 
every agency except: 

(1) The North Carolina National Guard in 
exercising its court-martial jurisdiction. 

(2) The Department of Human Resources 
in exercising its authority over the 
Camp Butner reservation granted in 
Article 6 of Chapter 122C of the Gen- 
eral Statutes. 

(3) The Utilities Commission. 

(4) The Industrial Commission. 

(5) The Employment Security Commission. 

(d) Exemptions From Rule Making. - Article 
2A of this Chapter does not apply to the following: 

(1) The Commission. 

(2) The North Carolina Low-Level Radio- 
active Waste Management Authority in 
administering the provisions of G.S. 
104G-10and G.S. 104G-11. 

(3) The North Carolina Hazardous Waste 
Management Commission in administer- 
ing the provisions of G.S. 130B-13 and 
G.S. 130B-14. 

(4) The Department of Revenue, except 
that Parts 3 and 4 of Article 2A apply 
to the Department. 

(5) The North Carolina Air Cargo Airport 
Authority with respect to the acquisi- 
tion, construction, operation, or use, 
including fees or charges, of any por- 
tion of a cargo airport complex. 

(e) Exemptions From Contested Case Provi- 
sions. — The contested case provisions of this 



Chapter apply to all agencies and all proceedings 
not expressly exempted from the Chapter. The 
contested case provisions of this Chapter do not 
apply to the following: 

(1) The Department of Human Resources 
and the Department of Environment, 
Health, and Natural Resources in com- 
plying with the procedural safeguards 
mandated by Section 680 of F^rt H of 
Public Law 99-457 as amended (Educa- 
tion of the Handicapped Act Amend- 
ments of 1986). 

(2) Repealed by Session Lav^ 1993 c. 501, 
s. 29, effective July 23, 1993. 

(3) The North Carolina Low-Level Radio- 
active Waste Management Authority in 
administering the provisions of G.S. 
104G-9, 104G-10, and 104G-11. 

(4) The North Carolina Hazardous Waste 
Management Commission in administer- 
ing the provisions of G.S. 130B-11, 
130B-13, and 130B-14. 

(5) Hearings required pursuant to the Reha- 
bilitation Act of 1973, (Public Law 
93-122), as amended and federal regu- 
lations promulgated thereunder. G.S. 
150B-51(a) is considered a contested 
case hearing provision that does not 
apply to these hearings. 

(6) The Department of Revenue. 

(7) The Department of Correction. 

(8) The Department of Transportation, 
except as provided in G.S. 136-29. 

(9) The Occupational Safety and Health 
Review Board in all actions that do not 
involve agricultural employers. 

(10) The North Carolina Air Cargo Airport 
Authority with respect to the acquisi- 
tion, construction, operation, or use, 
including fees or charges, of any por- 
tion of a cargo airport complex. 

(f) Exemption From All But Judicial Review. — 
No Article in this Chapter except Article 4 applies 
to the University of North Carolina. 
§ 150B-2. Defmitions. — As used in this 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



780 



GENERAL STATUTES OF NORTH CAROUNA 



Chapter, 
(01) 



(1) 



(la) 
(lb) 



(Ic) 
(2) 



(2a) 
(2b) 



(3) 



(4) 



(4a) 



"Administrative law judge" means a 
person appointed under G.S. 7A-752, 
7A-753, or 7A-757. 
"Agency" means an agency or an offi- 
cer in the executive branch of the gov- 
enmient of this State and includes the 
Council of State, the Governor's Of- 
fice, a board, a commission, a depart- 
ment, a division, a council, and any 
other unit of government in the execu- 
tive branch. A local unit of govern- 
ment is not an agency. 
"Adopt" means to take final action to 
create, amend, or repeal a rule. 
"Codifier of Rules" means the Chief 
Administrative Law Judge of the Office 
of Administrative Hearings or a desig- 
nated representative of the Chief Ad- 
ministrative Law Judge. 
"Commission" means the Rules Review 
Commission. 

"Contested case" means an administra- 
tive proceeding pursuant to this Chapter 
to resolve a dispute between an agency 
and another person that involves the 
person's rights, duties, or privileges, 
including licensing or the levy of a 
monetary penalty. "Contested case" 
does not include rulemaking, declarato- 
ry rulings, or the award or denial of a 
scholarship or grant. 
Repealed by Session Laws 1991, c. 
418, s. 3, effective October 1, 1991. 
"Hearing officer" means a person or 
group of persons designated by an 
agency that is subject to Article 3A of 
this Chapter to preside in a contested 
case hearing conducted under that Arti- 
cle. 

"License" means any certificate, permit 
or other evidence, by whatever name 
called, of a right or privilege to engage 
in any activity, except licenses issued 
under Chapter 20 and Subchapter 1 of 
Chapter 105 of the General Statutes and 
occupational licenses. 
"Licensing" means any administrative 
action issuing, failing to issue, suspend- 
ing, or revoking a license or occupa- 
tional license. "Licensing" does not 
include controversies over whether an 
examination was fair or whether the 
applicant passed the examination. 
"Occupational license" means any 



certificate, permit, or other evidence, 
by whatever name called, of a right or 
privilege to engage in a profession, 
occupation, or field of endeavor that is 
issued by an occupational licensing 
agency. 
(4b) "Occupational licensing agency" means 
any board, commission, committee or 
other agency of the State of North 
Carolina which is established for the 
primary purpose of regulating the entry 
of persons into, and/or the conduct of 
persons within a particular profession, 
occupation or field of endeavor, and 
which is authorized to issue and revoke 
licenses. "Occupational licensing agen- 
cy" does not include State agencies or 
departments which may as only a part 
of their regular function issue permits 
or licenses. 

(5) "Party" means any person or agency 
named or admitted as a party or proper- 
ly seeking as of right to be admitted as 
a party and includes the agency as 
appropriate. This subdivision does not 
permit an agency that makes a final 
decision, or an officer or employee of 
the agency, to petition for initial judi- 
cial review of that decision. 

(6) "Person aggrieved" means any person 
or group of persons of common interest 
directly or indirectly affected substan- 
tially in his or its person, property, or 
employment by an administrative deci- 
sion. 

(7) "Person" means any natural person, 
partnership, corporation, body politic 
and any unincorporated association, 
organization, or society which may sue 
or be sued under a common name. 

(8) "Residence" means domicile or princi- 
pal place of business. 

(8a) "Rule" means any agency regulation, 
standard, or statement of general appli- 
cability that implements or interprets an 
enactment of the General Assembly or 
Congress or a regulation adopted by a 
federal agency or that describes the 
procedure or practice requirements of 
an agency. The term includes the 
establishment of a fee and the amend- 
ment or repeal of a prior rule. The 
term does not include the following: 
a. Statements concerning only the 
internal management of an agency 



781 



9:11 



NORTH CAROUNA REGISTER 



September 1, 1994 



GENERAL STATUTES OF NORTH CAROLINA 



or group of agencies within the 
same principal office or depart- 
ment enumerated in G.S. 143-11 
or 143B-6, including policies and 
procedures manuals, if the state- 
ment does not directly or substan- 
tially affect the procedural or 
substantive rights or duties of a 
person not employed by the agen- 
cy or group of agencies. 

b. Budgets and budget policies and 
procedures issued by the Director 
of the Budget, by the head of a 
department, as defined by G.S. 
143A-2 or G.S. 143B-3, by an 
occupational licensing board, as 
defined by G.S. 93B-1, or by the 
State Board of Elections. 

c. Nonbinding interpretive state- 
ments within the delegated author- 
ity of an agency that merely 
define, interpret, or explain the 
meaning of a statute or rule. 

d. A form, the contents or substan- 
tive requirements of which are 
prescribed by rule or statute. 

e. Statements of agency policy made 
in the context of another proceed- 
ing, including: 

1. Declaratory rulings under G.S. 
150B-4. 

2. Orders establishing or fixing 
rates or tariffs. 

f. Requirements, communicated to 
the public by the use of signs or 
symbols, concerning the use of 
public roads, bridges, ferries, 
buildings, or facilities. 

g. Statements that set forth criteria 
or guidelines to be used by the 
staff of an agency in performing 
audits, investigations, or inspec- 
tions; in settling financial disputes 
or negotiating financial arrange- 
ments; or in the defense, prosecu- 
tion, or settlement of cases. 

h. Scientific, architectural, or engi- 
neering standards, forms, or 
procedures, including design 
criteria and construction standards 
used to construct or maintain 
highways, bridges, or ferries. 

i. Job classification standards, job 
qualifications, and salaries estab- 
lished for positions under the 



jurisdiction of the State Personnel 
Commission, 
j. Establishment of the interest rate 
that applies to tax assessments 
under G.S. 105-241.1 and the 
variable component of the excise 
tax on motor fuel under G.S. 
105-434. 
(8b) "Substantial evidence" means relevant 
evidence a reasonable mind might 
accept as adequate to support a con- 
clusion. 
(9) Repealed by Session Laws 1991, c. 418 
s. 3, effective October 1, 1991. 
§ 150B-3. Special provisions on licensing. 

(a) When an applicant or a licensee makes a 
timely and sufficient application for issuance or 
renewal of a license or occupational license, 
including the payment of any required license fee, 
the existing license or occupational license does 
not expire until a decision on the application is 
finally made by the agency, and if the application 
is denied or the terms of the new license or occu- 
pational license are limited, until the last day for 
applying for judicial review of the agency order. 
This subsection does not affect agency action 
summarily suspending a license or occupational 
license under subsections (b) and (c) of this sec- 
tion. 

(b) Before the commencement of proceedings 
for the suspension, revocation, annulment, with- 
drawal, recall, cancellation, or amendment of any 
license other than an occupational license, the 
agency shall give notice to the licensee, pursuant 
to the provisions of G.S. 150B-23. Before the 
commencement of such proceedings involving an 
occupational license, the agency shall give notice 
pursuant to the provisions of G.S. 150B-38. In 
either case, the licensee shall be given an opportu- 
nity to show compliance with all lawful require- 
ments for retention of the license or occupational 
license. 

(c) If the agency finds that the public health, 
safety, or welfare requires emergency action and 
incorporates this finding in its order, summary 
suspension of a license or occupational license may 
be ordered effective on the date specified in the 
order or on service of the certified copy of the 
order at the last known address of the licensee, 
whichever is later, and effective during the pro- 
ceedings. The proceedings shall be promptly 
commenced and determined. 

Nothing in this subsection shall be construed as 
amending or repealing any special statutes, in 
effect prior to February 1, 1976, which provide 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



782 



GENERAL STATUTES OF NORTH CAROLINA 



for the summary suspension of a license. 
§ 150B-4. Declaratory rulings. 

(a) On request of a person aggrieved, an agency 
shall issue a declaratory ruling as to the validity of 
a rule or as to the applicability to a given state of 
fects of a statute administered by the agency or of 
a rule or order of the agency, except when the 
agency for good cause finds issuance of a ruling 
undesirable. The agency shall prescribe in its 
rules the circumstances in which rulings shall or 
shall not be issued. A declaratory ruling is bind- 
ing on the agency and the person requesting it 
unless it is altered or set aside by the court. An 
agency may not retroactively change a declaratory 
ruling, but nothing in this section prevents an 
agency from prosp)ectively changing a declaratory 
ruling. A declaratory ruling is subject to judicial 
review in the same manner as an order in a con- 
tested case. Failure of the agency to issue a 
declaratory ruling on the merits within 60 days of 
the request for such ruling shall constitute a denial 
of the request as well as a denial of the merits of 
the request and shall be subject to judicial review. 

(b) This section does not apply to the Depart- 
ment of Correction. 

Article 2. 

Rule Making. 

Repealed . 

Article 2A. 
Rules. 
Part 1 . General Provisions. 
§ 150B-18. Scope and effect. 

This Article applies to an agency's exercise of its 
authority to adopt a rule. A rule is not valid 
unless it is adopted in substantial compliance with 
this Article. 

§ 150B-19. Restrictions on what can be adopt- 
ed as a rule. 

An agency may not adopt a rule that does one or 
more of the following: 

(1) Implements or interprets a law unless 
that law or another law specifically 
authorizes the agency to do so. 

(2) Enlarges the scope of a profession, 
occupation, or field of endeavor for 
which an occupational license is re- 
quired. 

(3) Imposes criminal liability or a civil 
penalty for an act or omission, includ- 
ing the violation of a rule, unless a law 
specifically authorizes the agency to do 
so or a law declares that violation of 
the rule is a criminal oifense or is 
grounds for a civil penalty. 



(4) Repeats the content of a law, a rule, or 
a federal regulation. 

(5) Establishes a reasonable fee or other 
reasonable charge for providing a ser- 
vice in fulfillment of a duty unless a 
law specifically authorizes the agency 
to do so or the fee or other charge is 
for one of the following: 

a. A service to a State, federal, or local 
governmental unit. 

b. A copy of part or all of a State publi- 
cation or other document, the cost of 
mailing a document, or both. 

c. A transcript of a public hearing. 

d. A conference, workshop, or course. 

e. Data processing services. 

(6) Allows the agency to waive or modify 
a requirement set in a rule unless a rule 
establishes specific guidelines the agen- 
cy must follow in determining whether 
to waive or modify the requirement. 

§ 150B-20. Petitioning an agency to adopt a 
rule. 

(a) Petition. — A person may petition an agency 
to adopt a rule by submitting to the agency a 
written rule-making petition requesting the adop- 
tion. A person may submit written comments with 
a rule-making petition. If a rule-making petition 
requests the agency to create or amend a rule, the 
p)erson must submit the proposed text of the 
requested rule change and a statement of the effect 
of the requested rule change. Each agency must 
establish by rule the procedure for submitting a 
rule-making petition to it and the procedure the 
agency follows in considering a rule-making 
petition. 

(b) Time. — An agency must grant or deny a 
rule-making petition submitted to it within 30 days 
after the date the rule-making petition is submitted, 
unless the agency is a board or commission. If the 
agency is a board or commission, it must grant or 
deny a rule-making petition within 120 days after 
the date the rule-making petition is submitted. 

(c) Action. — If an agency denies a rule-making 
petition, it must send the person who submitted the 
petition a written statement of the reasons for 
denying the petition. If an agency grants a 
rule-making petition, it must inform the jserson 
who submitted the rule-making petition of its 
decision and must initiate rule-making proceedings. 
When an agency grants a rule-making petition 
requesting the creation or amendment of a rule, the 
notice of rule making it publishes in the North 
Carolina Register may state that the agency is 
initiating rule-making proceedings as the result of 



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a rule-making petition, state the name of the 
person who submitted the rule-making petition, set 
out the text of the requested rule change submitted 
with the rule-making petition, and state whether 
the agency endorses the proposed rule change. 

(d) Review. — Denial of a rule-making petition 
is a final agency decision and is subject to judicial 
review under Article 4 of this Chapter. Failure of 
an agency to grant or deny a rule-making petition 
within the time limits set in subsection (b) is a 
denial of the rule-making petition. 

(e) Exception. — This section does not apply to 
the Department of Correction. 

§ 150B-21. Agency must designate 

rule-making coordinator. 

Each agency must designate one or more 
rule-making coordinators to oversee the agency's 
rule-making functions. The coordinator must 
prepare notices of public hearings, coordinate 
access to the agency's rules, and serve as the 
liaison between the agency, other agencies, and the 
public in the rule-making process. 

Part 2. Adoption of Rules. 
§ 150B-21.1. Procedure for adopting a tem- 
porary rule. 

(a) Adoption. — An agency may adopt a tempo- 
rary rule without prior notice or hearing or upon 
any abbreviated notice or hearing the agency finds 
practical when it finds that adherence to the notice 
and hearing requirements of this Part would be 
contrary to the public interest and that the immedi- 
ate adoption of the rule is required by one or more 
of the following: 

(1) A serious and unforeseen threat to the 
public health, safety, or welfare. 

(2) The effective date of a recent act of the 
General Assembly or the United States 
Congress. 

(3) A recent change in federal or State 
budgetary policy. 

(4) A federal regulation. 

(5) A court order. 

(6) The need for the rule to become effec- 
tive the same date as the State Medical 
Facilities Plan approved by the Gover- 
nor, if the rule addresses a matter 
included in the State Medical Facilities 
Plan. 

An agency must prepare a written statement of 
its findings of need for a temporary rule. The 
statement must be signed by the head of the agen- 
cy adopting the rule. 

An agency must begin rule-making proceedings 
for a permanent rule by the day it adopts a tempo- 
rary rule. An agency begins rule-making proceed- 



ings for a permanent rule by submitting to the 
Codifier of Rules written notice of its intent to 
adopt a permanent rule. 

(b) Review. — When an agency adopts a tempo- 
rary rule it must submit the rule, the agency's 
written statement of its findings of need for the 
rule, and the notice of intent to adopt a permanent 
rule to the Codifier of Rules. Within one business 
day after an agency submits a temporary rule, the 
Codifier of Rules must review the agency's written 
statement of findings of need for the rule to deter- 
mine whether the statement of need meets the 
criteria listed in subsection (a). In reviewing the 
statement, the Codifier of Rules may consider any 
information submitted by the agency or another 
person. If the Codifier of Rules finds that the 
statement meets the criteria, the Codifier of Rules 
must notify the head of the agency and enter the 
rule in the North Carolina Administrative Code. 

If the Codifier of Rules finds that the statement 
does not meet the criteria, the Codifier of Rules 
must immediately notify the head of the agency. 
The agency may supplement its statement of need 
with additional findings or submit a new statement. 
If the agency provides additional findings or 
submits a new statement, the Codifier of Rules 
must review the additional findings or new state- 
ment within one business day after the agency 
submits the additional findings or new statement. 
If the Codifier of Rules again finds that the state- 
ment does not meet the criteria listed in subsection 
(a), the Codifier of Rules must immediately notify 
the head of the agency. 

If an agency decides not to provide additional 
findings or submit a new statement when notified 
by the Codifier of Rules that the agency's findings 
of need for a rule do not meet the required crite- 
ria, the agency must notify the Codifier of Rules 
of its decision. The Codifier of Rules must then 
enter the rule in the North Carolina Administrative 
Code on the sixth business day after receiving 
notice of the agency's decision. 

(c) Standing. — A person aggrieved by a tempo- 
rary rule adopted by an agency may file an action 
for declaratory judgment in Wake County Superior 
Court pursuant to Article 26 of Chapter 1 of the 
General Statutes. In the action, the court shall 
determine whether the agency's written statement 
of findings of need for the rule meets the criteria 
listed in subsection (a) and whether the rule meets 
the standards in G.S. 150B-2I.9 that apply to 
review of a permanent rule. The court may not 
grant an ex parte temporary restraining order. 

Filing a petition for rule making or a request for 
a declaratory ruling with the agency that adopted 



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the rule is not a prerequisite to filing an action 
under this subsection. A person who files an 
action for declaratory judgment under this subsec- 
tion must serve a copy of the complaint on the 
agency that adopted the rule being contested, the 
Codifier of Rules, and the Commission. 

(d) Effective Date and Expiration. — A tempo- 
rary rule becomes effective on the date specified in 
G.S. 150B-21.3. A temporary rule expires on the 
date specified in the rule or 180 days from the date 
the rule becomes effective, whichever comes first. 
§ 150B-21.2. Procedure for adopting a per- 
manent rule. 

(a) Notice. — Before an agency adopts a perma- 
nent rule, it must publish notice of its intent to 
adopt a permanent rule in the North Carolina 
Register and as required by any other law. The 
notice published in the North Carolina Register 
must include all of the following: 

(1) Either the text of the proposed rule or 
a statement of the subject matter of the 
proposed rule making. 

(2) A short explanation of the reason for 
the proposed action. 

(3) A citation to the law that gives the 
agency the authority to adopt the pro- 
posed rule, if the notice includes the 
text of the proposed rule, or a citation 
to the law that gives the agency the 
authority to adopt a rule on the subject 
matter of the proposed rule making, if 
the notice includes only a statement of 
the subject matter of the proposed rule 
making. 

(4) The profMDsed effective date of the 
proposed rule, if the notice includes the 
text of the proposed rule, or the pro- 
posed effective date of a rule adopted 
on the subject matter of the proposed 
rule making, if the notice includes only 
a statement of the subject matter of the 
proposed rule making. 

(5) The date, time, and place of any public 
hearing scheduled on the proposed rule 
or subject matter of the proposed rule 
making. 

(6) Instructions on how a pjerson may 
demand a public hearing on a proposed 
rule if the notice does not schedule a 
public hearing on the proposed rule and 
subsection (c) requires the agency to 
hold a public hearing on the proposed 
rule when requested to do so. 

(7) The {jeriod of time during which and 
the person to whom written comments 



may be submitted on the proposed rule 

or subject matter of the proposed rule 

making. 

(8) If a fiscal note has been prepared for 

the proposed rule or will be prepared 

when a rule is proposed on the subject 

matter of the proposed rule making, a 

statement that a copy of the fiscal note 

can be obtained from the agency. 

(b) Mailing List. — An agency must maintain a 

mailing list of piersons who have requested notice 

of rule making. When an agency publishes a 

rule-making notice in the North Carolina Register, 

it must mail a copy of the notice to each person on 

the mailing list who has requested notice of 

rule-making proceedings on the rule or the subject 

matter for rule making described in the notice. An 

agency may charge an annual fee to each person 

on the agency's mailing list to cover copying and 

mailing costs. 

(c) Hearing. — An agency must hold a public 
hearing on a rule it proposes to adopt in two 
circumstances and may hold a public hearing in 
other circumstances. When an agency is required 
to hold a public hearing on a proposed rule or 
decides to hold a public hearing on a proposed rule 
when it is not required to do so, the agency must 
publish in the North Carolina Register a notice of 
the date, time, and place of the public hearing. 
The hearing date of a public hearing held after the 
agency publishes notice of the hearing in the North 
Carolina Register must be at least 15 days after the 
date the notice is published. 

An agency must hold a public hearing on a rule 
it proposes to adopt in the following two circum- 
stances: 

(1) The agency publishes a statement of the 
subject matter of the proposed rule 
making in the notice in the North Caro- 
lina Register. 

(2) The agency publishes the text of the 
proposed rule in the notice in the North 
Carolina Register and all the following 
apply: 

a. The notice does not schedule a public 
hearing on the proposed rule. 

b. Within 15 days after the notice is 
published, the agency receives a 
written request for a public hearing on 
the proposed rule. 

c. The proposed rule is not part of a 
rule-making proceeding the agency 
initiated by publishing a statement of 
the subject matter of proposed rule 
making. 



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d. The proposed text is not a changed 
version of proposed text the agency 
previously published in the course of 
rule-making proceedings but did not 
adopt. 

(d) Text After Subject-Matter Notice. -- When 
an agency publishes notice of the subject matter of 
proposed rule making in the North Carolina 
Register, it must subsequently publish in the North 
Carolina Register the text of the rule it proposes to 
adopt as a result of the public hearing and of any 
comments received on the subject matter. An 
agency may not publish the proposed text of a rule 
for which it published a subject-matter notice 
before the public hearing on the subject matter. 

(e) Comments. — An agency must accept com- 
ments on the text of a proposed rule published in 
the North Carolina Register for at least 30 days 
after the text is published or until the date of any 
public hearing held on the proposed rule, whichev- 
er is longer. An agency must accept comments on 
a statement of the subject matter of proposed rule 
making until the public hearing on the subject 
matter. An agency must consider fully all written 
and oral comments received. 

(f) Adoption. — An agency may not adopt a rule 
until the time for commenting on the proposed text 
of the rule has elapsed and may not adopt a rule if 
more than 12 months have elapsed since the end of 
the time for commenting on the proposed text of 
the rule. An agency may not adopt a rule that 
differs substantially from the text of a proposed 
rule published in the North Carolina Register 
unless the agency publishes the text of the pro- 
posed different rule in the North Carolina Register 
and accepts comments on the proposed different 
rule for the time set in subsection (e). 

An adopted rule differs substantially from a 
proposed rule if it does one or more of the follow- 
ing: 

(1) Affects the interests of persons who, 
based on the notice published in the 
North Carolina Register or the pro- 
posed text of the rule, could not reason- 
ably have determined that the rule 
would affect their interests. 

(2) Addresses a subject matter or an issue 
that is not addressed in the proposed 
text of the rule. 

(3) Produces an effect that could not rea- 
sonably have been expected based on 
the proposed text of the rule. 

When an agency adopts a rule, it may not take 
subsequent action on the rule without following the 
procedures in this Part. 



(g) Explanation. — An agency must issue a 
concise written statement explaining why the 
agency adopted a rule if, within 30 days after the 
agency adopts the rule, a person asks the agency to 
do so. The explanation must state the principal 
reasons for and against adopting the rule and must 
discuss why the agency rejected any arguments 
made or considerations urged against the adoption 
of the rule. 

(h) Record. — An agency must keep a record of 
a rule-making proceeding. The record must 
include all written comments received, a transcript 
or recording of any public hearing held on the 
rule, and any written explanation made by the 
agency for adopting the rule. 
§ 150B-21.3. Effective date of rules. 

(a) Temporary Rule. — A temporary rule be- 
comes effective on the date the Codifier of Rules 
enters the rule in the North Carolina Administra- 
tive Code. 

(b) Permanent Rule. — A permanent rule ap- 
proved by the Commission becomes effective five 
business days after the Commission delivers the 
rule to the Codifier of Rules, unless the agency 
adopting the rule specifies a later effective date. 
If the agency specifies a later effective date, the 
rule becomes effective on that date. 

A permanent rule that is not approved by the 
Commission becomes effective five business days 
after the agency adopting the rule delivers the rule 
to the Codifier of Rules, unless the agency adopt- 
ing the rule specifies a later effective date. If the 
agency specifies a later effective date, the rule 
becomes effective on that date. 

(c) OSHA Standard. -- A permanent rule con- 
cerning an occupational safety and health standard 
that is adopted by the Occupational Safety and 
Health Division of the Department of Labor and is 
identical to a federal regulation promulgated by the 
Secretary of the United States Department of 
Labor becomes effective on the date the Division 
delivers the rule to the Codifier of Rules, unless 
the Division specifies a later effective date. If the 
Division specifies a later effective date, the rule 
becomes effective on that date. 

§ 150B-21.4. Fiscal notes on rules. 

(a) State Funds. — Before an agency publishes in 
the North Carolina Register the proposed text of a 
permanent rule change that would require the 
expenditure or distribution of funds subject to the 
Executive Budget Act, Article 1 of Chapter 143, it 
must submit the text of the proposed rule change 
and a fiscal note on the proposed rule change to 
the Director of the Budget and obtain certification 
from the Director that the funds that would be 



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required by the proposed rule change are available. 
The fiscal note must state the amount of funds that 
would be expended or distributed as a result of the 
proposed rule change and explain how the amount 
was computed. The Director of the Budget must 
certify a proposed rule change if funds are avail- 
able to cover the expenditure or distribution 
required by the proposed rule change. 

(b) Local Funds. — Before an agency publishes 
in the North Carolina Register the proposed text of 
a permanent rule change that would affect the 
expenditures or revenues of a unit of local govern- 
ment, it must submit the text of the proposed rule 
change and a fiscal note on the proposed rule 
change to the Fiscal Research Division of the 
General Assembly, the Office of State Budget and 
Management, the North Carolina Association of 
County Commissioners, and the North Carolina 
League of Municipalities. The fiscal note must 
state the amount by which the proposed rule 
change would increase or decrease expenditures or 
revenues of a unit of local government and must 
explain how the amount was computed. 

(c) Errors. — An erroneous fiscal note prepared 
in good faith does not affect the validity of a rule. 
§ 150B-21.5. Circumstances when notice and 
rule-making hearing not required. 

(a) Amendment. — An agency is not required to 
publish a notice of rule making in the North 
Carolina Register or hold a public hearing when it 
proposes to amend a rule, without changing the 
substance of the rule, to do one of the following: 

(1) Reletter or renumber the rule or 
subparts of the rule. 

(2) Substitute one name for another when 
an organization or position is renamed. 

(3) Correct a citation in the rule to another 
rule or law when the citation has be- 
come inaccurate since the rule was 
adopted because of the repeal or renum- 
bering of the cited rule or law. 

(4) Change information that is readily 
available to the public, such as an 
address or a telephone number. 

(5) Correct a typographical error made in 
entering the rule in the North Carolina 
Administrative Code. 

(6) Change a rule in response to a request 
or an objection by the Commission. 

(b) Repeal. — An agency is not required to 
publish a notice of rule making in the North 
Carolina Register or hold a public hearing when it 
proposes to repeal a rule as a result of any of the 
following: 

(1) The law under which the rule was 



adopted is repealed. 

(2) The law under which the rule was 
adopted or the rule itself is declared 
unconstitutional. 

(3) The rule is declared to be in excess of 
the agency's statutory authority. 

(c) OSHA Standard. — The Occupational Safety 
and Health Division of the Department of Labor is 
not required to publish a notice of rule making in 
the North Carolina Register or hold a public 
hearing when it proposes to adopt a rule that 
concerns an occupational safety and health stan- 
dard and is identical to a federal regulation pro- 
mulgated by the Secretary of the United States 
Department of Labor. The Occupational Safety 
and Health Division is not required to submit to 
the Commission for review a rule for which notice 
and hearing is not required under this subsection. 
§ 150B-21.6. Incorporating material in a rule 
by reference. 

An agency may incorporate the following materi- 
al by reference in a rule without repeating the text 
of the referenced material: 

(1) Another rule or part of a rule adopted by 
the agency. 

(2) All or part of a code, standard, or regula- 
tion adopted by another agency, the 
federal government, or a generally recog- 
nized organization or association. 

(3) Material adopted to meet a requirement 
of the federal government. 

In incorporating material by reference, the 
agency must designate in the rule whether or not 
the incorporation includes subsequent amendments 
and editions of the referenced material. The 
agency can change this designation only by a 
subsequent rule-making proceeding. The agency 
must have copies of the incorporated material 
available for inspection and must specify in the 
rule both where copies of the material can be 
obtained and the cost on the date the rule is adopt- 
ed of a copy of the material. 

A statement in a rule that a rule incorporates 
material by reference in accordance with former 
G.S. 1 SOB- 14(b) is a statement that the rule does 
not include subsequent amendments and editions of 
the referenced material. A statement in a rule that 
a rule incorporates material by reference in accor- 
dance with former G.S. 1 SOB- 14(c) is a statement 
that the rule includes subsequent amendments and 
editions of the referenced material. 
§ 150B-21.7. Effect of transfer of duties or 
termination of agency on rules. 

When a law that authorizes an agency to adopt a 
rule is repealed and another law gives the same or 



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another agency substantially the same authority to 
adopt a rule, the rule remains in effect until the 
agency amends or repeals the rule. When a law 
that authorizes an agency to adopt a rule is re- 
pealed and another law does not give the same or 
another agency substantially the same authority to 
adopt a rule, a rule adopted under the repealed law 
is repealed as of the date the law is repealed. 

When an executive order abolishes part or all of 
an agency and transfers a function of that agency 
to another agency, a rule concerning the trans- 
ferred function remains in effect until the agency 
to which the function is transferred amends or 
repeals the rule. When an executive order abolish- 
es part or all of an agency and does not transfer a 
function of that agency to another agency, a rule 
concerning a function abolished by the executive 
order is repealed as of the effective date of the 
executive order. 

The Director of Fiscal Research of the General 
Assembly must notify the Codifier of Rules when 
a rule is repealed under this section. When noti- 
fied of a rule repealed under this section, the 
Codifier of Rules must enter the repeal of the rule 
in the North Carolina Administrative Code. 

Part 3. Review by Commission. 
§ 150B-21.8. Review of rule by Commission. 
(a) Temporary Rule. — The Commission does 
not review a temporary rule. 

(b) Permanent Rule. — An agency must submit 
a permanent rule adopted by it to the Commission 
before the rule can be included in the North 
Carolina Administrative Code. The Commission 
reviews a permanent rule in accordance with the 
standards in G.S. 150B-21.9 and follows the 
procedure in this Part in its review of a permanent 
rule. 

(c) Scope. ~ When the Commission reviews an 
amendment to a rule, it may review the entire rule 
that is being amended. The procedure in G.S. 
150B-21.12 applies when the Commission objects 
to a part of a rule that is within its scope of review 
but is not changed by a rule amendment. 

§ 150B-21.9. Standards and timetable for 
review by Commission. 

(a) Standards. -- The Commission must deter- 
mine whether a rule meets all of the following 
criteria: 

(1) It is within the authority delegated to 
the agency by the General Assembly. 

(2) It is clear and unambiguous. 

(3) It is reasonably necessary to fulfill a 
duty delegated to the agency by the 
General Assembly. 

The Commission may determine if a rule submit- 



ted to it was adopted in accordance with Part 2 of 
this Article. The Commission must notify the 
agency that adopted the rule if it determines that a 
rule was not adopted in accordance with Part 2 of 
this Article and must return the rule to the agency. 
Entry of a rule in the North Carolina Administra- 
tive Code after review by the Commission is 
conclusive evidence that the rule was adopted in 
accordance with Part 2 of this Article. 

(b) Timetable. — The Commission must review 
a rule submitted to it on or before the twentieth of 
a month by the last day of the next month. The 
Commission must review a rule submitted to it 
after the twentieth of a month by the last day of 
the second subsequent month. 
§ 150B-21.10. Commission action on perma- 
nent rule. 

At the first meeting at which a permanent rule is 
before the Commission for review, the Commis- 
sion must take one of the following actions: 

(1) Approve the rule, if the Commission 
determines that the rule meets the stan- 
dards for review. 

(2) Object to the rule, if the Commission 
determines that the rule does not meet the 
standards for review. 

(3) Extend the period for reviewing the rule, 
if the Commission determines it needs 
additional information on the rule to be 
able to decide whether the rule meets the 
standards for review. 

In reviewing a new rule or an amendment to an 
existing rule, the Commission may request an 
agency to make technical changes to the rule and 
may condition its approval of the rule on the 
agency's making the requested technical changes. 
§ 150B-21.il. Procedure when Commission 
approves permanent rule. 

When the Commission approves a permanent 
rule, it must notify the agency that adopted the 
rule of the Commission's approval and must 
deliver the approved rule to the Codifier of Rules. 
The Commission must deliver an approved rule by 
the end of the month in which the Commission 
approved the rule, unless the agency asks the 
Commission to delay the delivery of the rule. 
§ 150B-21.12. Procedure when Commission 
objects to a permanent rule. 

(a) Action. — When the Commission objects to 
a permanent rule, it must send the agency that 
adopted the rule a written statement of the objec- 
tion and the reason for the objection. The agency 
that adopted the rule must take one of the follow- 
ing actions: 

(1) Change the rule to satisfy the 



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GENERAL STATUTES OF NORTH CAROUNA 



Commission's objection and submit the 
revised rule to the Commission. 
(2) Submit a written response to the Com- 
mission indicating that the agency has 
decided not to change the rule. 

An agency that is not a board or commission 
must take one of these actions within 30 days after 
receiving the Commission's statement of objection. 
A board or commission must take one of these 
actions within 30 days after receiving the 
Commission's statement of objection or within 10 
days after the board or commission's next regular- 
ly scheduled meeting, whichever comes later. 

When an agency changes a rule in response to an 
objection by the Commission, the Commission 
must determine whether the change satisfies the 
Commission's objection. If it does, the Commis- 
sion must approve the rule. If it does not, the 
Commission must send the agency a written 
statement of the Commission's continued objection 
and the reason for the continued objection. 

A rule to which the Commission has objected 
remains under review by the Commission until the 
agency that adopted the rule decides not to satisfy 
the Commission's objection and makes a written 
request to the Commission to return the rule to the 
agency. When the Commission returns a rule to 
which it has objected, it may send to the President 
of the Senate and each member of the General 
Assembly a report of its objection to the rule. 

(b) Entry in Code. — When the Commission 
returns a rule to which it has objected to the 
agency that adopted the rule, the Commission must 
notify the Codifier of Rules of its action and of the 
basis of the Commission's objection. An agency 
whose rule is returned may file the rule with the 
Codifier of Rules. When the Codifier of Rules 
enters in the North Carolina Administrative Code 
a rule to which the Commission objected, the entry 
must reflect the Commission's objection and must 
state the standard on which the Commission based 
its objection. 

§ 150B-21.13. Procedure when Commission 
extends period for review of permanent rule. 

When the Commission extends the period for 
review of a permanent rule, it must notify the 
agency that adopted the rule of the extension and 
the reason for the extension. After the Commis- 
sion extends the period for review of a rule, it may 
call a public hearing on the rule. Within 70 days 
after extending the period for review of a rule, the 
Commission must decide whether to approve the 
rule, object to the rule, or call a public hearing on 
the rule. 
§ 150B-21.14. Public hearing on a rule. 



The Commission may call a public hearing on a 
rule when it extends the period for review of the 
rule. At the request of an agency, the Commission 
may call a public hearing on a rule that is not 
before it for review. Calling a public hearing on 
a rule not already before the Commission for 
review places the rule before the Commission for 
review. When the Commission decides to call a 
public hearing on a rule, it must publish notice of 
the public hearing in the North Carolina Register. 

After a public hearing on a rule, the Commission 
must approve the rule or object to the rule in 
accordance with the standards and procedures in 
this Part. The Commission must make its decision 
of whether to approve or object to the rule within 
70 days after the public hearing. 
§ 150B-21.15. Declaratory judgment action 
authorized when Commission objects to a per- 
manent rule. 

(a) Standing. — A person aggrieved by a perma- 
nent rule entered in the North Carolina Adminis- 
trative Code with an objection by the Commission 
based on a lack of statutory authority may file an 
action for declaratory judgment in Wake County 
Superior Court pursuant to Article 26 of Chapter 
1 of the General Statutes. In the action, the court 
shall determine whether the agency exceeded its 
authority in adopting the rule. 

A declaratory judgment action under this section 
must be filed within 90 days after the rule that is 
the subject of the action is entered in the Code. 
Filing a petition for rule making or a request for a 
declaratory ruling with the agency that adopted the 
rule is not a prerequisite to filing an action under 
this section. A person who files an action for 
declaratory judgment under this section must serve 
a copy of the complaint on the agency that adopted 
the rule being contested, the Codifier of Rules, and 
the Commission. 

(b) Record. — Within 10 days after a declaratory 
judgment action is filed under this section, the 
agency that adopted the rule that is the subject of 
the action must send to the court the original or a 
certified copy of the record in the Commission's 
review of the rule. The record consists of the 
rule, the Commission's letter of objection to the 
rule, the agency's written response to the 
Commission's letter, and any other relevant docu- 
ments before the Commission when it decided to 
object to the rule. 

(c) Effect. — A rule remains in effect during 
the pendency of an action for declaratory judgment 
under this section unless the court suspends the 
rule after finding that the agency that adopted the 
rule has no substantial likelihood of prevailing in 



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the action. 

(d) Changes. — While a rule is the subject of a 
declaratory judgment action under this section, the 
agency that adopted the rule may submit to the 
Commission changes in the rule to satisfy the 
Commission's objection. If the Commission 
determines that changes submitted to it satisfy its 
objection, the Commission must accept the changes 
and file the revised rule with the Codifier of 
Rules. The Codifier must then enter the rule in 
the North Carolina Administrative Code. When 
the Commission determines that changes submitted 
to it satisfy its objection, the agency that submitted 
the changes must notify the court of the changes 
and of the Commission's action. 

Part 4. Publication of Code and Register. 
§ 150B-21.17. North Carolina Register. 

(a) Content. — The Codifier of Rules must 
publish the North Carolina Register. The North 
Carolina Register must be published at least two 
times a month and must contain the following: 

(1) Notices of proposed adoptions of rules. 

(2) Notices of receipt of a petition for 
municipal incorporation, as required by 
G.S. 120-165. 

(3) Executive orders of the Governor. 

(4) Final decision letters from the United 
States Attorney General concerning 
changes in laws that affect voting in a 
jurisdiction subject to § 5 of the Voting 
Rights Act of 1965, as required by 
G.S. 120-30. 9H. 

(5) Orders of the Tax Review Board issued 
under G.S. 105-241.2. 

(6) Other information the Codifier deter- 
mines helpful to the public. 

(b) Form. — When an agency publishes notice in 
the North Carolina Register of the proposed text of 
a new rule, the Codifier of Rules must publish the 
complete text of the proposed new rule. In pub- 
lishing the text of a proposed new rule, the Codifi- 
er must indicate the rule is new by underlining the 
proposed text of the rule. 

When an agency publishes notice in the North 
Carolina Register of the proposed text of an 
amendment to an existing rule, the Codifier must 
publish the complete text of the rule that is being 
amended unless the Codifier determines that 
publication of the complete text of the rule being 
amended is not necessary to enable the reader to 
understand the proposed amendment. In publish- 
ing the text of a proposed amendment to a rule, 
the Codifier must indicate deleted text with over- 
strikes and added text with underlines. 

When an agency publishes notice in the North 



Carolina Register of the proposed repeal of an 
existing rule, the Codifier must publish the com- 
plete text of the rule the agency proposes to repeal 
unless the Codifier determines that publication of 
the complete text is impractical. In publishing the 
text of a rule the agency proposes to repeal, the 
Codifier must indicate the rule is to be repealed. 
§ 150B-21.18. North Carolina Administrative 
Code. 

The Codifier of Rules must compile all rules into 
a Code known as the North Carolina Administra- 
tive Code. The format and indexing of the Code 
must conform as nearly as practical to the format 
and indexing of the North Carolina General Stat- 
utes. The Codifier must publish printed copies of 
the Code and may publish the Code in other 
forms. The Codifier must keep the Code current 
by publishing the Code in a loose-leaf format and 
periodically providing new pages to be substituted 
for outdated pages, by publishing the Code in 
volumes and periodically publishing cumulative 
supplements, or by another means. The Codifier 
may authorize and license the private indexing, 
marketing, sales, reproduction, and distribution of 
the Code. The Codifier must keep superseded 
rules. 

§ 150B-21.19. Requirements for including 
rule in Code. 

To be acceptable for inclusion in the North 
Carolina Administrative Code, a rule must: 

(1) Cite the law under which the rule is 
adopted. 

(2) Be signed by the head of the agency or 
the rule-making coordinator for the agen- 
cy that adopted the rule. 

(3) Be in the physical form specified by the 
Codifier of Rules. 

(4) Have been reviewed by the Commission, 
if the rule is a permanent rule. 

§ 150B-21.20. Codifier's authority to revise 
form of rules. 

(a) Authority. — After consulting with the 
agency that adopted the rule, the Codifier of Rules 
may revise the form of a rule submitted for inclu- 
sion in the North Carolina Administrative Code 
within 10 business days after the rule is submitted 
to do one or more of the following: 

(1) Rearrange the order of the rule in the 
Code or the order of the subsections, 
subdivisions, or other subparts of the 
rule. 

(2) Provide a catch line or heading for the 
rule or revise the catch line or heading 
of the rule. 

(3) Reletter or renumber the rule or the 



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subparts of the rule in accordance with 
a uniform system. 

(4) Rearrange definitions and lists. 

(5) Make other changes in arrangement or 
in form that do not change the sub- 
stance of the rule and are necessary or 
desirable for a clear and orderly ar- 
rangement of the rule. 

(b) Effect. - Revision of a rule by the Codifier 
of Rules under this section does not affect the 
effective date of the rule or require the agency to 
readopt or resubmit the rule. When the Codifier 
of Rules revises the form of a rule, the Codifier of 
Rules must send the agency that adopted the rule 
a copy of the revised rule. The revised rule is the 
official rule. 

§ 150B-21.21. Publication of rules of North 
Carolina State Bar and exempt agencies. 

(a) State Bar. -- The North Carolina State Bar 
must submit a rule adopted or approved by it and 
entered in the minutes of the North Carolina 
Supreme Court to the Codifier of Rules for inclu- 
sion in the North Carolina Administrative Code. 
The State Bar must submit a rule within 15 days 
after it is entered in the minutes of the Supreme 
Court. The Codifier of Rules must compile, make 
available for public inspection, and publish a rule 
included in the North Carolina Administrative 
Code under this subsection in the same maimer as 
other rules in the Code. 

(b) Exempt Agencies. — Notwithstanding G.S. 
150B-1, the North Carolina Utilities Commission 
must submit to the Codifier of Rules those rules of 
the Utilities Commission that are published from 
time to time in the publication titled "North Caroli- 
na Utilities Laws and Regulations." The Utilities 
Commission must submit a rule required to be 
included in the Code within 15 days after it is 
adopted. The Codifier of Rules must publish the 
rules submitted by the Utilities Commission in the 
North Carolina Administrative Code in the same 
format as they are submitted. 

Notwithstanding G.S. 150B-1, an agency other 
than the Utilities Commission that is exempted 
from this Article by that statute must submit a 
temporary or permanent rule adopted by it to the 
Codifier of Rules for inclusion in the North Caroli- 
na Administrative Code. One of these exempt 
agencies must submit a rule to the Codifier of 
Rules within 15 days after it adopts the rule. The 
Codifier of Rules must compile, make available for 
public inspection, and publish a rule of one of 
these agencies in the North Carolina Administra- 
tive Code in the same manner as other rules in the 
Code. 



§ 150B-21.22. Effect of inclusion in Code, 

Official or judicial notice can be taken of a rule 
in the North Carolina Administrative Code and 
shall be taken when appropriate. Codification of a 
rule in the North Carolina Administrative Code is 
prima facie evidence of compliance with this 
Article. 
§ 150B-21.23. Rule publication manual. 

The Codifier of Rules must publish a manual that 
sets out the form and method for publishing a 
notice of rule making in the North Carolina Regis- 
ter and for filing a rule in the North Carolina 
Administrative Code. 

§ 150B-21.24. Free copies of Register and 
Code. 

(a) Register. — The Codifier of Rules must 
distribute copies of the North Carolina Register as 
soon after publication as practical, without charge, 
to the following: 

(1) A person who receives a free copy of 
the North Carolina Administrative 
Code. 

(2) Upon request, one copy to each mem- 
ber of the General Assembly. 

(b) Code. — The Codifier of Rules must distrib- 
ute copies of the North Carolina Administrative 
Code as soon after publication as practical, without 
charge, to the following: 

(1) One copy to the board of commission- 
ers of each county, to be placed at the 
county clerk of court's office or at 
another place selected by the board of 
commissioners. 

(2) One copy to the Commission. 

(3) One copy to the Clerk of the Supreme 
Court and to the Clerk of the Court of 
Apf>eals of North Carolina. 

(4) One copy to the Supreme Court Library 
and one copy to the library of the Court 
of Appeals. 

(5) One copy to the Administrative Office 
of the Courts. 

(6) One copy to the Governor. 

(7) Five copies to the Legislative Services 
Commission for the use of the General 
Assembly. 

(8) Upon request, one copy to each State 
official or department to whom or to 
which copies of the appellate division 
reports are furnished under G.S. 
7A-343.1. 

(9) Five copies to the Division of State 
Library of the Department of Cultural 
Resources pursuant to G.S. 125-11.7. 

§ 150B-21.25. Paid copies of Register and 



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GENERAL STATUTES OF NORTH CAROLINA 



Code. 

A person who is not entitled to a free copy of the 
North Carolina Administrative Code or North 
Carolina Register may obtain a copy by paying a 
fee set by the Codifier of Rules. The Codifier 
must set separate fees for the North Carolina 
Register and the North Carolina Administrative 
Code in amounts that cover publication, copying, 
and mailing costs. All monies received under this 
section must be credited to the General Fund. 
Article 3. 
Administrative Hearings. 
§ 150B-22. Settlement; contested case. 

It is the policy of this State that any dispute 
between an agency and another person that in- 
volves the person's rights, duties, or privileges, 
including licensing or the levy of a monetary 
penalty, should be settled through informal proce- 
dures. In trying to reach a settlement through 
informal procedures, the agency may not conduct 
a proceeding at which sworn testimony is taken 
and witnesses may be cross-examined. If the 
agency and the other person do not agree to a 
resolution of the dispute through informal proce- 
dures, either the agency or the person may com- 
mence an administrative proceeding to determine 
the person's rights, duties, or privileges, at which 
time the dispute becomes a "contested case. " 
§ 150B-23. Commencement; assignment of 
administrative law judge; hearing required; 
notice; intervention. 

(a) A contested case shall be commenced by 
filing a petition with the Office of Administrative 
Hearings and, except as provided in Article 3A of 
this Chapter, shall be conducted by that Office. 
The party who files the petition shall serve a copy 
of the petition on all other parties and, if the 
dispute concerns a license, the person who holds 
the license. A party who files a petition shall file 
a certificate of service together with the petition. 
A petition shall be signed by a party or a represen- 
tative of the party and, if filed by a party other 
than an agency, shall state fects tending to estab- 
lish that the agency named as the respondent has 
deprived the petitioner of property, has ordered the 
petitioner to pay a fine or civil penalty, or has 
otherwise substantially prejudiced the petitioner's 
rights and that the agency: 

(1) Exceeded its authority or jurisdiction; 

(2) Acted erroneously; 

(3) Failed to use proper procedure; 

(4) Acted arbitrarily or capriciously; or 

(5) Failed to act as required by law or rule. 
The parties in a contested case shall be given an 

opportunity for a hearing without undue delay. 



Any person aggrieved may commence a contested 
case hereunder. 

A local government employee, applicant for 
employment, or former employee to whom Chap- 
ter 126 of the General Statutes applies may com- 
mence a contested case under this Article in the 
same manner as any other petitioner. The cose 
shall be conducted in the Office of Admini s trative 
Hearing s in the s ome manner aa other conte s ted 
cases under thi s Article, except that the decision of 
the State Personnel Commi s sion s hall be advisory 
only and not binding on the local appointing 
authority, unless (1) — the employee, applicant, or 
former employee has been subjected to discrimina 
tion prohibited by Article 6 of Chapter 126 of the 
General Statutes or (2) — applicable federal stan 
dards require a binding decision. The case shall be 
conducted in the same manner as other contested 
cases under this Article, except that the State 
Personnel Commission shall enter final decisions 
only in cases in which it is found that the employ- 
ee, a pplicant, or former employee has been sub- 
jected to discrimination prohibited by Article 6 of 
Chapter 126 of the General Statutes or in any case 
where a binding decision is required by a pplicable 
federal standards. In these \we cases, the State 
Personnel Commission's decision shall be binding 
binding on the local appointing authority. In all 
other cases, the final decision shall be made by the 
applicable a ppointing authority . 

(al) Repealed by Session Laws 1985 (Reg. 
Sess., 1986), c. 1022, s. 1(9). 

(a2) An administrative law judge assigned to a 
contested case may require a party to the case to 
file a prehearing statement. A party's prehearing 
statement must be served on all other parties to the 
contested case. 

(b) The parties to a contested case shall be given 
a notice of hearing not less than 1 5 days before the 
hearing by the Office of Administrative Hearings. 
If prehearing statements have been filed in the 
case, the notice shall state the date, hour, and 
place of the hearing. If prehearing statements 
have not been filed in the case, the notice shall 
state the date, hour, place, and nature of the 
hearing, shall list the particular sections of the 
statutes and rules involved, and shall give a short 
and plain statement of the factual allegations. 

(c) Notice shall be given personally or by 
certified mail. If given by certified mail, it shall 
be deemed to have been given on the delivery date 
appearing on the return receipt. If giving of notice 
cannot be accomplished either personally or by 
certified mail, notice shall then be given in the 
manner provided in G.S. lA-1, Rule 4(jl). 



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(d) Any person may f>etition to become a party 
by filing a motion to intervene in the manner 
provided in G.S. lA-1, Rule 24. In addition, any 
person interested in a contested case may intervene 
and participate in that proceeding to the extent 
deemed appropriate by the administrative law 
judge. 

(e) All hearings under this Chapter shall be open 
to the public. Hearings shall be conducted in an 
impartial manner Hearings shall be conducted 
according to the procedures set out in this Article, 
except to the extent and in the particulars that 
specific hearing procedures and time standards are 
governed by another statute. 

(f) Unless another statute or a federal statute or 
regulation sets a time limitation for the filing of a 
petition in contested cases against a sjjecified 
agency, the general limitation for the filing of a 
petition in a contested case is 60 days. The time 
limitation, whether established by another statute, 
federal statute, or federal regulation, or this 
section, shall commence when notice is given of 
the agency decision to all persons aggrieved who 
are known to the agency by personal delivery or 
by the placing of the notice in an official deposito- 
ry of the United States Postal Service wrapped in 
a wrapper addressed to the person at the latest 
address given by the j>erson to the agency. The 
notice shall be in writing, and shall set forth the 
agency action, and shall inform the persons of the 
right, the procedure, and the time limit to file a 
contested case petition. When no informal settle- 
ment request has been received by the agency 
prior to issuance of the notice, any subsequent 
informal settlement request shall not suspend the 
time limitation for the filing of a petition for a 
contested case hearing. 

§ 150B-23.1. Mediated settlement 
conferences. 

(a) Purpose. — This section authorizes a media- 
tion program in the Office of Administrative 
Hearings in which the chief administrative law 
judge may require the parties in a contested case to 
attend a prehearing settlement conference conduct- 
ed by a mediator The purpose of the program is 
to determine whether a system of mediated settle- 
ment conferences may make the operation of the 
Office of Administrative Hearings more efficient, 
less costly, and more satisfying to the parties. 

(b) Definitions. — The following definitions 
apply in this section: 

(1) Mediated settlement conference. — A 
conference ordered by the chief admin- 
istrative law judge involving the parties 
to a contested case and conducted by a 



mediator prior to a contested case 
hearing. 
(2) Mediator — A neutral pjerson who acts 
to encourage and facilitate a resolution 
of a contested case but who does not 
make a decision on the merits of the 
contested case. 

(c) Conference. — The chief administrative law 
judge may order a mediated settlement conference 
for all or any part of a contested case to which an 
administrative law judge is assigned to preside. 
All aspects of the mediated settlement conference 
shall be conducted in so fer as {rossible in accor- 
dance with the rules adopted by the Supreme Court 
for the court-ordered mediation pilot program 
under G.S. 7A-38. 

(d) Attendance. — The parties to a contested 
case in which a mediated settlement conference is 
ordered, their attorneys, and other persons having 
authority to settle the parties' claims shall attend 
the settlement conference unless excused by the 
presiding administrative law judge. 

(e) Mediator. — The parties shall have the right 
to stipulate to a mediator. Upon the failure of the 
parties to agree within a time limit established by 
the presiding administrative law judge, a mediator 
shall be appointed by the presiding administrative 
law judge. 

(f) Sanctions. — Upon failure of a party or a 
party's attorney to attend a mediated settlement 
conference ordered under this section, the presid- 
ing administrative law judge may impose any 
sanction authorized by G.S. 150B-33(b)(8) or (10). 

(g) Standards. — Mediators authorized to con- 
duct mediated settlement conferences under this 
section shall comply with the standards adopted by 
the Supreme Court for the court-ordered mediation 
pilot program under G.S. 7A-38. 

(h) Immunity. — A mediator acting pursuant to 
this section shall have judicial immunity in the 
same manner and to the same extent as a judge of 
the General Court of Justice. 

(i) Costs. — Costs of a mediated settlement 
conference shall be paid one share by the petition- 
er, one share by the respondent, and an equal 
share by any intervenor, unless otherwise appor- 
tioned by the administrative law judge. 

(j) Inadmissibility of Negotiations. — All con- 
duct or communications made during a mediated 
settlement conference are presumed to be made in 
compromise negotiations and shall be governed by 
Rule 408 of the North Carolina Rules of Evidence. 

(k) Right to Hearing. — Nothing in this section 
restricts the right to a contested case hearing. 
§ 1 SOB- 24. Venue of hearing. 



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GENERAL STATUTES OF NORTH CAROLINA 



(a) The hearing of a contested case shall be 
conducted: 

(1) In the county in this State in which any 
person whose property or rights are the 
subject matter of the hearing maintains 
his residence; 

(2) In the county where the agency main- 
tains its principal office if the property 
or rights that are the subject matter of 
the hearing do not affect any person or 
if the subject matter of the hearing is 
the property or rights of residents of 
more than one county; or 

(3) In any county determined by the admin- 
istrative law judge in his discretion to 
promote the ends of justice or better 
serve the convenience of witnesses. 

(b) Any person whose property or rights are the 
subject matter of the hearing waives his objection 
to venue by proceeding in the hearing. 

§ 150B-25. Conduct of hearing; answer. 

(a) If a party tails to appear in a contested case 
after proper service of notice, and if no adjourn- 
ment or continuance is granted, the administrative 
law judge may proceed with the hearing in the 
absence of the party. 

(b) Repealed by Session Laws 1991, c. 35, s. 2, 
effective October 1, 1991. 

(c) The parties shall be given an opportunity to 
present arguments on issues of law and policy and 
an opportunity to present evidence on issues of 
feet. 

(d) A party may cross-examine any witness, 
including the author of a document prepared by, 
on behalf of, or for use of the agency and offered 
in evidence. Any party may submit rebuttal 
evidence. 

§ 150B-26. Consolidation. 

When contested cases involving a common 
question of law or feet or multiple proceedings 
involving the same or related parties are pending, 
the Director of the Office of Administrative Hear- 
ings may order a joint hearing of any matters at 
issue in the cases, order the cases consolidated, or 
make other orders to reduce costs or delay in the 
proceedings. 
§ 150B-27. Subpoena. 

After the commencement of a contested case, 
subpoenas may be issued and served in accordance 
with G.S. lA-1, Rule 45. In addition to the 
methods of service in G.S. lA-1, Rule 45, a State 
law enforcement officer may serve a subpoena on 
behalf of an agency that is a party to the contested 
case by any method by which a sheriff may serve 
a subpoena under that Rule. Upon a motion, the 



administrative law judge may quash a subpoena if, 
upon a hearing, the administrative law judge finds 
that the evidence the production of which is re- 
quired does not relate to a matter in issue, the 
subpoena does not describe with sufficient particu- 
larity the evidence the production of which is 
required, or for any other reason sufficient in law 
the subpoena may be quashed. 

Witness fees shall be paid by the party requesting 
the subfKjena to subpoenaed witnesses in accor- 
dance with G.S. 7A-314. However, State officials 
or employees who are subpoenaed shall not be 
entitled to witness fees, but they shall receive their 
normal salary and they shall not be required to 
take any annual leave for the witness days. Travel 
expenses of State officials or employees who are 
subpoenaed shall be reimbursed as provided in 
G.S. 138-6. 
§ 150B-28. Depositions and discovery. 

(a) A deposition may be used in lieu of other 
evidence when taken in compliance with the Rules 
of Civil Procedure, G.S. lA-1. Parties in contest- 
ed cases may engage in discovery pursuant to the 
provisions of the Rules of Civil Procedure, G.S. 
lA-1. 

(b) On a request for identifiable agency records, 
with respect to material fects involved in a contest- 
ed case, except records related solely to the inter- 
nal procedures of the agency or which are exempt 
from disclosure by law, an agency shall promptly 
make the records available to a party. 

§ 150B-29. Rules of evidence. 

(a) In all contested cases, irrelevant, immaterial 
and unduly repetitious evidence shall be excluded. 
Except as otherwise provided, the rules of evi- 
dence as applied in the trial division of the General 
Court of Justice shall be followed; but, when 
evidence is not reasonably available under the 
rules to show relevant fects, then the most reliable 
and substantial evidence available shall be admit- 
ted. On the judge's own motion, an administrative 
law judge may exclude evidence that is inadmissi- 
ble under this section. It shall not be necessary 
for a party or his attorney to object at the hearing 
to evidence in order to preserve the right to object 
to its consideration by the administrative law judge 
in making a recommended decision, by the agency 
in making a final decision, or by the court on 
judicial review. 

(b) Evidence in a contested case, including 
records and documents, shall be offered and made 
a part of the record. Factual information or 
evidence not made a part of the record shall not be 
considered in the determination of the case, except 
as permitted under G.S. 1508-30. Documentary 



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GENERAL STATUTES OF NORTH CAROUNA 



evidence may be received in the form of a copy or 
excerpt or may be incorporated by reference, if the 
materials so incorporated are available for exami- 
nation by the parties. Upon timely request, a 
party shall be given an opportunity to compare the 
copy with the original if available. 
§ 150B-30. Official notice. 

Official notice may be taken of all facts of which 
judicial notice may be taken and of other facts 
within the specialized knowledge of the agency. 
The noticed fact and its source shall be stated and 
made known to affected parties at the earliest 
practicable time, and any party shall on timely 
request be afforded an opportunity to dispute the 
noticed feet through submission of evidence and 
argument. 
§ 150B-31. Stipulations. 

(a) The parties in a contested case may, by a 
stipulation in writing filed with the administrative 
law judge, agree upon any feet involved in the 
controversy, which stipulation shall be used as 
evidence at the hearing and be binding on the 
parties thereto. Parties should agree upon fects 
when practicable. 

(b) Except as otherwise provided by law, dispo- 
sition may be made of a contested case by stipula- 
tion, agreed settlement, consent order, waiver, 
defeult, or other method agreed upon by the 
parties. 

§ 150B-32. Designation of administrative law 
judge. 

(a) The Director of the Office of Administrative 
Hearings shall assign himself or another adminis- 
trative law judge to preside over a contested case. 

(al) Repealed by Session Laws 1985 (Reg. 
Sess., 1986), c. 1022, s. 1 (15), effective July 15, 
1986. 

(b) On the filing in good feith by a party of a 
timely and sufficient affidavit of personal bias or 
disqualification of an administrative law judge, the 
administrative law judge shall determine the matter 
as a part of the record in the case, and this deter- 
mination shall be subject to judicial review at the 
conclusion of the proceeding. 

(c) When an administrative law judge is disqual- 
ified or it is impracticable for him to continue the 
hearing, the Director shall assign another adminis- 
trative law judge to continue with the case unless 
it is shown that substantial prejudice to any party 
will result, in which event a new hearing shall be 
held or the case dismissed without prejudice. 

§ 150B-33. Powers of administrative law 
judge, 

(a) An administrative law judge shall stay any 
contested case under this Article on motion of an 



agency which is a party to the contested case, if 
the agency shows by supporting affidavits that it is 
engaged in other litigation or administrative pro- 
ceedings, by whatever name called, with or before 
a federal agency, and this other litigation or 
administrative proceedings will determine the 
position, in whole or in part, of the agency in the 
contested case. At the conclusion of the other 
litigation or administrative proceedings, the con- 
tested case shall proceed and be determined as 
expeditiously as possible, 
(b) An administrative law judge may: 

(1) Administer oaths and affirmations; 

(2) Sign, issue, and rule on subpoenas in 
accordance with G.S. 150B-27 and 
G.S. lA-1, Rule 45; 

(3) Provide for the taking of testimony h^ 
deposition and rule on all objections to 
discovery in accordance with G.S. 
lA-1, the Rules of Civil Procedure; 

(3a) Rule on all prehearing motions that are 
authorized by G.S. lA-1, the Rules of 
Civil Procedure; 

(4) Regulate the course of the hearings, 
including discovery, set the time and 
place for continued hearings, and fix 
the time for filing of briefs and other 
documents; 

(5) Direct the parties to appear and confer 
to consider simplification of the issues 
by consent of the parties; 

(6) Stay the contested action by the agency 
pending the outcome of the case, upon 
such terms as he deems proper, and 
subject to the provisions of G.S. lA-1, 
Rule 65; 

(7) Determine whether the hearing shall be 
recorded by a stenographer or by an 
electronic device; and 

(8) Enter an order returnable in the General 
Court of Justice, Superior Court Divi- 
sion, to show cause why the person 
should not be held in contempt. The 
Court shall have the power to impose 
punishment as for contempt for any act 
which would constitute direct or indi- 
rect contempt if the act occurred in an 
action pending in Sujjerior Court. 

(9) Determine that a rule as applied in a 
particular case is void because (1) it is 
not within the statutory authority of the 
agency, (2) is not clear and unambigu- 
ous to persons it is intended to direct, 
guide, or assist, or (3) is not reasonably 
necessary to enable the agency to fulfill 



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GENERAL STATUTES OF NORTH CAROLINA 



a duty delegated to it by the General 
Assembly. 
(10) Impose the sanctions provided for in 
G.S. lA-1 or Chapter 3 of Title 26 of 
the North Carolina Administrative Code 
for noncompliance with applicable 
procedural rules. 

§ 150B-34. Recommended decision or order 

of administrative law judge. 

(a) Except as provided in G.S. 150B-36(c), in 
each contested case the administrative law judge 
shall make a recommended decision or order that 
contains findings of feet and conclusions of law. 

(b) Repealed by Session Laws 1991, c. 35, s. 6, 
effective October 1, 1991. 

150B-35. No ex parte communication; 
exceptions. 

Unless required for disposition of an ex parte 
matter authorized by law, neither the administra- 
tive law judge assigned to a contested case nor a 
member or employee of the agency making a final 
decision in the case may communicate, directly or 
indirectly, in connection with any issue of feet, or 
question of law, with any person or party or his 
representotive, except on notice and opportunity 
for all parties to participate. 
§ 150B-36. Final decision. 

(a) Before the agency makes a final decision, it 
shall give each party an opportunity to file excep- 
tions to the decision recommended by the adminis- 
trative law judge, and to present written arguments 
to those in the agency who will make the final 
decision or order. If a party files in good faith a 
timely and sufficient affidavit of personal bias or 
other reason for disqualification of a member of 
the agency making the final decision, the agency 
shall determine the matter as a part of the record 
in the case, and the determination is subject to 
judicial review at the conclusion of the case. 

(b) A final decision or order in a contested case 
shall be made by the agency in writing after 
review of the official record as defined in G.S. 
150B-37(a) and shall include findings of fact and 
conclusions of law. If the agency does not adopt 
the administrative law judge's recommended 
decision as its final decision, the agency shall state 
in its decision or order the specific reasons why it 
did not adopt the administrative law judge's rec- 
ommended decision. The agency may consider 
only the official record prepared pursuant to G.S. 
150B-37 in making a final decision or order, and 
the final decision or order shall be supported by 
substantial evidence admissible under G.S. 
150B-29(a), 150B-30, or 150B-31. A copy of the 
decision or order shall be served upon each party 



personally or by certified mail addressed to the 
party at the latest address given by the party to the 
agency, and a copy shall be furnished to his 
attorney of record and the Office of Administrative 
Hearings. 

(c) The following decisions made by administra- 
tive law judges in contested cases are final deci- 
sions: 

(1) A determination that the Office of 
Administrative Hearings lacks jurisdic- 
tion. 

(2) An order entered pursuant to the au- 
thority in G.S. 7A-759(e). 

(3) An order entered pursuant to a written 
prehearing motion that either dismisses 
the contested case for feilure of the 
petitioner to prosecute or grants the 
relief requested when a party does not 
comply with procedural requirements. 

(4) An order entered pursuant to a 
prehearing motion to dismiss the con- 
tested case in accordance with G.S. 
lA-1, Rule 12(b) when the order dis- 
poses of all issues in the contested case. 

§ 150B-37. Official record. 

(a) In a contested case, the Office of Adminis- 
trative Hearings shall prepare an official record of 
the case that includes: 

(1) Notices, pleadings, motions, and inter- 
mediate rulings; 

(2) Questions and offers of proof, objec- 
tions, and rulings thereon; 

(3) Evidence presented; 

(4) Matters officially noticed, except mat- 
ters so obvious that a statement of them 
would serve no useful purpose; and 

(5) Repealed by Session Laws 1987, c. 
878, s. 25, eff'ective August 14, 1987. 

(6) The administrative law judge's recom- 
mended decision or order. 

(b) Proceedings at which oral evidence is 
presented shall be recorded, but need not be 
transcribed unless requested by a party. Each 
party shall bear the cost of the transcript or part 
thereof or copy of said transcript or part thereof 
which said party requests, and said transcript or 
part thereof shall be added to the official record as 
an exhibit. 

(c) The Office of Administrative Hearings shall 
forward a copy of the official record to the agency 
making the final decision and shall forward a copy 
of the recommended decision to each party. 
Article 3A. 
Other Administrative Hearings. 
§ 150B-38. Scope; hearing required; notice; 



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796 



GENERAL STATUTES OF NORTH CAROLINA 



venue. 

(a) The provisions of this Article shall apply to 
the following agencies: 

(1) Occupational licensing agencies; 

(2) The State Banking Commission, the 
Commissioner of Banks, the Savings 
Institutions Division of the Department 
of Commerce, and the Credit Union 
Division of the Department of Com- 
merce; and 

(3) The Department of Insurance and the 
Commissioner of Insurance. 

(b) Prior to any agency action in a contested 
case, the agency shall give the parties in the case 
an opportunity for a hearing without undue delay 
and notice not less than 15 days before the hear- 
ing. Notice to the parties shall include: 

(1) A statement of the date, hour, place, 
and nature of the hearing; 

(2) A reference to the particular sections of 
the statutes and rules involved; and 

(3) A short and plain statement of the fects 
alleged. 

(c) Notice shall be given personally or by 
certified mail. If given by certified mail, notice 
shall be deemed to have been given on the delivery 
date appearing on the return receipt. If notice 
cannot be given personally or by certified mail, 
then notice shall be given in the manner provided 
in G.S. lA-1, Rule 4(jl). 

(d) A party who has been served with a notice 
of hearing may file a written response with the 
agency. If a written response is filed, a copy of 
the response must be mailed to all other parties not 
less than 10 days before the date set for the hear- 
ing. 

(e) Ail hearings conducted under this Article 
shall be open to the public. A hearing conducted 
by the agency shall be held in the county where 
the agency maintains its principal office. A 
hearing conducted for the agency by an administra- 
tive law judge requested under G.S. 150B-40 shall 
be held in a county in this State where any person 
whose property or rights are the subject matter of 
the hearing resides. If a different venue would 
promote the ends of justice or better serve the 
convenience of witnesses, the agency or the admin- 
istrative law judge may designate another county. 
A person whose property or rights are the subject 
matter of the hearing waives his objection to venue 
if he proceeds in the hearing. 

(f) Any person may jjetition to become a party 
by filing with the agency or hearing officer a 
motion to intervene in the manner provided by 
G.S. lA-1, Rule 24. In addition, any person 



interested in a contested case under this Article 
may intervene and participate to the extent deemed 
appropriate by the agency hearing officer. 

(g) When contested cases involving a common 
question of law or fact or multiple proceedings 
involving the same or related parties are pending 
before an agency, the agency may order a joint 
hearing of any matters at issue in the cases, order 
the cases consolidated, or make other orders to 
reduce costs or delay in the proceedings. 

(h) Every agency shall adopt rules governing the 
conduct of hearings that are consistent with the 
provisions of this Article. 

§ 150B-39. Depositions; discovery; subpoe- 
nas. 

(a) A dep)osition may be used in lieu of other 
evidence when taken in compliance with the Rules 
of Civil Procedure, G.S. lA-1. Parties in a 
contested case may engage in discovery pursuant 
to the provisions of the Rules of Civil Procedure, 
G.S. lA-1. 

(b) Upon a request for an identifiable agency 
record involving a material feet in a contested 
case, the agency shall promptly provide the record 
to a party, unless the record relates solely to the 
agency's internal procedures or is exempt from 
disclosure by law. 

(c) In preparation for, or in the conduct of, a 
contested case subpoenas may be issued and served 
in accordance with G.S. IA-1, Rule 45. Upon a 
motion, the agency may quash a subpoena if, upon 
a hearing, the agency finds that the evidence, the 
production of which is required, does not relate to 
a matter in issue, the subpoena does not describe 
with sufficient particularity the evidence the 
production of which is required, or for any other 
reason sufScient in law the subpoena may be 
quashed. Witness fees shall be paid by the party 
requesting the subpoena to subpoenaed witnesses 
in accordance with G.S. 7A-314. However, State 
officials or employees who are subpoenaed shall 
not be entitled to any witness fees, but they shall 
receive their normal salary and they shall not be 
required to take any annual leave for the witness 
days. Travel expenses of State officials or em- 
ployees who are subpoenaed shall be reimbursed 
as provided in G.S. 138-6. 

§ 150B-40. Conduct of hearing; presiding 
officer; ex parte communication. 

(a) Hearings shall be conducted in a fair and 
impartial manner. At the hearing, the agency and 
the parties shall be given an opportunity to present 
evidence on issues of feet, examine and 
cross-examine witnesses, including the author of a 
document prepared by, on behalf of or for the use 



797 



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GENERAL STATUTES OF NORTH CAROLINA 



of the agency and offered into evidence, submit 
rebuttal evidence, and present arguments on issues 
of law or policy. 

If a party foils to appear in a contested case after 
he has been given proper notice, the agency may 
continue the hearing or proceed with the hearing 
and make its decision in the absence of the party. 

(b) Except as provided under subsection (e) of 
this section, hearings under this Article shall be 
conducted by a majority of the agency. An agency 
shall designate one or more of its members to 
preside at the hearing. If a party files in good 
faith a timely and sufficient affidavit of the person- 
al bias or other reason for disqualification of any 
member of the agency, the agency shall determine 
the matter as a part of the record in the case, and 
its determination shall be subject to judicial review 
at the conclusion of the proceeding. If a presiding 
officer is disqualified or it is impracticable for him 
to continue the hearing, another presiding officer 
shall be assigned to continue with the case, except 
that if assignment of a new presiding officer will 
cause substantial prejudice to any party, a new 
hearing shall be held or the case dismissed without 
prejudice. 

(c) The presiding officer may: 

(1) Administer oaths and affirmations; 

(2) Sign and issue subpoenas in the name 
of the agency, requiring attendance and 
giving of testimony by witnesses and 
the production of books, papers, and 
other documentary evidence; 

(3) Provide for the taking of testimony by 
deposition; 

(4) Regulate the course of the hearings, set 
the time and place for continued hear- 
ings, and fix the time for filing of 
briefs and other documents; 

(5) Direct the parties to appear and confer 
to consider simplification of the issues 
by consent of the parties; and 

(6) Apply to any judge of the superior 
court resident in the district or presid- 
ing at a term of court in the county 
where a hearing is pending for an order 
to show cause why any person should 
not be held in contempt of the agency 
and its processes, and the court shall 
have the power to impose punishment 
as for contempt for acts which would 
constitute direct or indirect contempt if 
the acts occurred in an action pending 
in superior court. 

(d) Unless required for disposition of an ex 
parte matter authorized by law, a member of an 



agency assigned to make a decision or to make 
findings of fact and conclusions of law in a con- 
tested case under this Article shall not communi- 
cate, directly or indirectly, in connection with any 
issue of fact or question of law, with any person or 
party or his representative, except on notice and 
opportunity for all parties to participate. This 
prohibition begins at the time of the notice of 
hearing. An agency member may communicate 
with other members of the agency and may have 
the aid and advice of the agency staff other than 
the staff which has been or is engaged in investi- 
gating or prosecuting fimctions in cormection with 
the case under consideration or a factually-related 
case. This section does not apply to an agency 
employee or party representative with professional 
training in accounting, actuarial science, econom- 
ics or financial analysis insofar as the case in- 
volves financial practices or conditions. 

(e) When a majority of an agency is unable or 
elects not to hear a contested case, the agency shall 
apply to the Director of the Office of Administra- 
tive Hearings for the designation of an administra- 
tive law judge to preside at the hearing of a con- 
tested case under this Article. Upon receipt of the 
application, the Director shall, without undue 
delay, assign an administrative law judge to hear 
the case. 

The provisions of this Article, rather than the 
provisions of Article 3, shall govern a contested 
case in which the agency requests an administra- 
tive law judge from the Office of Administrative 
Hearings. 

The administrative law judge assigned to hear a 
contested case under this Article shall sit in place 
of the agency and shall have the authority of the 
presiding officer in a contested case under this 
Article. The administrative law judge shall make 
a proposal for decision, which shall contain pro- 
posed findings of fact and proposed conclusions of 
law. 

An administrative law judge shall stay any 
contested case under this Article on motion of an 
agency which is a party to the contested case, if 
the agency shows by supporting affidavits that it is 
engaged in other litigation or administrative pro- 
ceedings, by whatever name called, with or before 
a federal agency, and this other litigation or 
administrative proceedings will determine the 
position, in whole or in part, of the agency in the 
contested case. At the conclusion of the other 
litigation or administrative proceedings, the con- 
tested case shall proceed and be determined as 
expeditiously as possible. 

The agency may make its final decision only 



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GENERAL STATUTES OF NORTH CAROLINA 



after the administrative law judge's prop)osal for 
decision is served on the parties, and an opportuni- 
ty is given to each party to file exceptions and 
proposed findings of feet and to present oral and 
written arguments to the agency. 
§ 150B-41. Evidence; stipulations; oflicial 
notice. 

(a) In all contested cases, irrelevant, immaterial, 
and unduly repetitious evidence shall be excluded. 
Except as otherwise provided, the rules of evi- 
dence as applied in the trial division of the General 
Court of Justice shall be followed; but, when 
evidence is not reasonably available under such 
rules to show relevant facts, they may be shown 
by the most reliable and substantial evidence 
available. It shall not be necessary for a party or 
his attorney to object to evidence at the hearing in 
order to preserve the right to object to its consider- 
ation by the agency in reaching its decision, or by 
the court of judicial review. 

(b) Evidence in a contested case, including 
records and documents shall be offered and made 
a part of the record. Other fectual information or 
evidence shall not be considered in determination 
of the case, except as permitted under G.S. 
150B-30. Documentary evidence may be received 
in the form of a copy or excerpt or may be incor- 
porated by reference, if the materials so incorpo- 
rated are available for examination by the parties. 
Upon timely request, a party shall be given an 
opportunity to compare the copy with the original 
if available. 

(c) The parties in a contested case under this 
Article by a stipulation in writing filed with the 
agency may agree upon any feet involved in the 
controversy, which stipulation shall be used as 
evidence at the hearing and be binding on the 
parties thereto. Parties should agree upon fects 
when practicable. Except as otherwise provided 
by law, disposition may be made of a contested 
case by stipulation, agreed settlement, consent 
order, waiver, defeult, or other method agreed 
upon by the parties. 

(d) Official notice may be taken of all fects of 
which judicial notice may be taken and of other 
fects within the specialized knowledge of the 
agency. TTie noticed feet and its source shall be 
stated and made known to affected parties at the 
earliest practicable time, and any party shall on 
timely request be afforded an opportunity to 
dispute the noticed feet through submission of 
evidence and argument. An agency may use its 
experience, technical competence, and specialized 
knowledge in the evaluation of evidence presented 
to it. 



§ 150B-42. Final agency decision; official 
record. 

(a) After compliance with the provisions of G.S. 
150B-40(e), if applicable, and review of the 
official record, as defined in subsection (b) of this 
section, an agency shall make a written final 
decision or order in a contested case. The deci- 
sion or order shall include findings of feet and 
conclusions of law. Findings of feet shall be based 
exclusively on the evidence and on matters offi- 
cially noticed. Findings of feet, if set forth in 
statutory language, shall be accompanied by a 
concise and explicit statement of the underlying 
fects supporting them. A decision or order shall 
not be made except upon consideration of the 
record as a whole or such portion thereof as may 
be cited by any party to the proceeding and shall 
be supported by substantial evidence admissible 
under G.S. 150B-41. A copy of the decision or 
order shall be served upon each party personally 
or by certified mail addiiessed to the party at the 
latest address given by the party to the agency and 
a copy shall be furnished to his attorney of record. 

(b) An agency shall prepare an official record of 
a hearing that shall include: 

(1) Notices, pleadings, motions, and inter- 
mediate rulings; 

(2) Questions and offers of proof, objec- 
tions, and rulings thereon; 

(3) Evidence presented; 

(4) Matters officially noticed, except mat- 
ters so obvious that a stetement of them 
would serve no useful purpose; 

(5) Proposed findings and exceptions; and 

(6) Any decision, opinion, order, or report 
by the officer presiding at the hearing 
and by the agency. 

(c) Proceedings at which oral evidence is pre- 
sented shall be recorded, but need not be tran- 
scribed unless requested by a party. Each party 
shall bear the cost of the transcript or part thereof 
or copy of said transcript or part thereof which 
said party requests. 

Article 4. 
Judicial Review. 
§ 150B-43. Right to judicial review. 

Any person who is aggrieved by the final deci- 
sion in a contested case, and who has exhausted all 
administrative remedies made available to him by 
sfetute or agency rule, is entitled to judicial review 
of the decision under this Article, unless adequate 
procedure for judicial review is provided by 
another statute, in which case the review shall be 
under such other statute. Nothing in this Chapter 
shall prevent any person from invoking any judi- 



799 



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GENERAL STATUTES OF NORTH CAROLINA 



cial remedy available to him under the law to test 
the validity of any administrative action not made 
reviewable under this Article. 
§ 150B-44. Right to judicial intervention 
when decision unreasonably delayed. 

Unreasonable delay on the part of any agency or 
administrative law judge in taking any required 
action shall be justification for any person whose 
rights, duties, or privileges are adversely affected 
by such delay to seek a court order compelling 
action by the agency or administrative law judge. 
An agency that is subject to Article 3 of this 
Chapter and is not a board or commission has 90 
days from the day it receives the official record in 
a contested case from the Office of Administrative 
Hearings to make a final decision in the case. 
This time limit may be extended by the parties or, 
for good cause shown, by the agency for an 
additional period of up to 90 days. An agency that 
is subject to Article 3 of this Chapter and is a 
board or commission has 90 days from the day it 
receives the official record in a contested case 
firom the Office of Administrative Hearings or 90 
days after its next regularly scheduled meeting, 
whichever is longer, to make a final decision in 
the case. This time limit may be extended by the 
parties or, for good cause shown, by the agency 
for an additional period of up to 90 days. If an 
agency subject to Article 3 of this Chapter has not 
made a final decision within these time limits, the 
agency is considered to have adopted the adminis- 
trative law judge's recommended decision as the 
agency's final decision. Failure of an agency 
subject to Article 3A of this Chapter to make a 
final decision within 1 80 days of the close of the 
contested case hearing is justification for a person 
whose rights, duties, or privileges are adversely 
affected by the delay to seek a court order compel- 
ling action by the agency or, if the case was heard 
by an administrative law judge, by the administra- 
tive law judge. 

§ 150B-45. Procedure for seeking review; 
waiver. 

To obtain judicial review of a final decision 
under this Article, the pierson seeking review must 
file a petition in the Superior Court of Wake 
County or in the superior court of the county 
where the person resides. 

The person seeking review must file the petition 
within 30 days after the person is served with a 
written copy of the decision. A p)erson who fails 
to file a petition within the required time waives 
the right to judicial review under this Article. For 
good cause shown, however, the superior court 
may accept an untimely petition. 



§ 150B-46. Contents of petition; copies served 
on all parties; intervention. 

The petition shall explicitly state what exceptions 
are taken to the decision or procedure and what 
relief the petitioner seeks. Within 10 days after 
the petition is filed with the court, the party 
seeking the review shall serve copies of the f)eti- 
tion by personal service or by certified mail upon 
all who were parties of record to the administrative 
proceedings. Names and addresses of such parties 
shall be furnished to the petitioner by the agency 
upon request. Any party to the administrative 
proceeding is a party to the review proceedings 
unless the party withdraws by notifying the court 
of the withdrawal and serving the other parties 
with notice of the withdrawal . Other parties to the 
proceeding may file a response to the petition 
within 30 days of service. Parties, including 
agencies, may state exceptions to the decision or 
procedure and what relief is sought in the re- 
sponse. 

Any person aggrieved may p)etition to become a 
party by filing a motion to intervene as provided in 
G.S. lA-1, Rule 24. 

§ 150B-47. Records filed with clerk of superi- 
or court; contents of records; costs. 

Within 30 days after receipt of the copy of the 
petition for review, or within such additional time 
as the court may allow, the agency that made the 
final decision in the contested case shall transmit 
to the reviewing court the original or a certified 
copy of the official record in the contested case 
under review together with: (i) any exceptions, 
proposed findings of fact, or written arguments 
submitted to the agency in accordance with G.S. 
150B-36(a); and (ii) the agency's final decision or 
order. With the permission of the court, the 
record may be shortened by stipulation of all 
parties to the review proceedings. Any party 
unreasonably refusing to stipulate to limit the 
record may be taxed by the court for such addi- 
tional costs as may be occasioned by the refusal. 
The court may require or permit subsequent 
corrections or additions to the record when deemed 
desirable. 
§ 150B-48. Stay of decision. 

At any time before or during the review proceed- 
ing, the person aggrieved may apply to the review- 
ing court for an order staying the operation of the 
administrative decision pending the outcome of the 
review. The court may grant or deny the stay in 
its discretion upon such terms as it deems proper 
and subject to the provisions of G.S. lA-1, Rule 
65. 
§ 150B-49. New evidence. 



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800 



GENERAL STATUTES OF NORTH CAROLINA 



An aggrieved person who files a petition in the 
superior court may apply to the court to present 
additional evidence. If the court is satisfied that 
the evidence is material to the issues, is not merely 
cumulative, and could not reasonably have been 
presented at the administrative hearing, the court 
may remand the case so that additional evidence 
can be taken. If an administrative law judge did 
not make a recommended decision in the case, the 
court shall remand the case to the agency that 
conducted the administrative hearing. After 
hearing the evidence, the agency may affirm or 
modify its previous findings of feet and final 
decision. If an administrative law judge made a 
recommended decision in the case, the court shall 
remand the case to the administrative law judge. 
After hearing the evidence, the administrative law 
judge may aflirm or modify his previous findings 
of fact and recommended decision. The administra- 
tive law judge shall forward a copy of his decision 
to the agency that made the final decision, which 
in turn may affirm or modify its previous findings 
of fact and final decision. The additional evidence 
and any affirmation or modification of a recom- 
mended decision or final decision shall be made 
part of the official record. 

§ 150B-50. Review by superior court without 
jury. 

The review by a superior court of agency deci- 
sions under this Chapter shall be conducted by the 
court without a jury. 
§ 150B-51. Scope of review. 

(a) Initial Determination in Certain Cases. In 
reviewing a final decision in a contested case in 
which an administrative law judge made a recom- 
mended decision, the court shall make two initial 
determinations. First, the court shall determine 
whether the agency heard new evidence after 
receiving the recommended decision. If the court 
determines that the agency heard new evidence, 
the court shall reverse the decision or remand the 
case to the agency to enter a decision in accor- 
dance with the evidence in the official record. 
Second, if the agency did not adopt the recom- 
mended decision, the court shall determine wheth- 
er the agency's decision states the sjjecific reasons 
why the agency did not adopt the recommended 
decision. If the court determines that the agency 
did not state specific reasons why it did not adopt 
a recommended decision, the court shall reverse 
the decision or remand the case to the agency to 
enter the specific reasons. 

(b) Standard of Review. After making the 
determinations, if any, required by subsection (a), 
the court reviewing a final decision may affirm the 



decision of the agency or remand the case for 
further proceedings. It may also reverse or modi- 
fy the agency's decision if the substantial rights of 
the petitioners may have been prejudiced because 
the agency's findings, inferences, conclusions, or 
decisions are: 



(1) 

(2) 

(3) 
(4) 
(5) 



(6) 



In violation of constitutional provisions; 

In excess of the statutory authority or 

jurisdiction of the agency; 

Made upon unlawful procedure; 

Affected by other error of law; 

Unsupported by substantial evidence 

admissible under G.S. 150B-29(a), 

1503-30, or 150B-3I in view of the 

entire record as submitted; or 

Arbitrary or capricious. 
§ 150B-52. Appeal; stay of court's decision. 
A party to a review proceeding in a superior 
court may appeal to the appellate division from the 
final judgment of the superior court as provided in 
G.S. 7A-27. Pending the outcome of an appeal, 
an appealing party may apply to the court that 
issued the judgment under apf>eal for a stay of that 
judgment or a stay of the administrative decision 
that is the subject of the appeal, as appropriate. 
Article 5. 
Publication of Administrative Rules. 
Repealed. 



801 



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PROPOSED RULES 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

JSotice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Convnission 
intends to amend rule cited as 10 NCAC 42R 
.0201. 

1 he proposed effective date of this action is 
December 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on October 4, 1994 at the Albemarle Build- 
ing, Room 844, 325 North Salisbury Street, Ra- 
leigh, NC 27603-5905. 

Mxeason for Proposed Action: lb increase the 
maximum rate of reimbursement for the purchase 
of adult day care services through the State Adult 
Day Care Fund so that the maximum rate is 
consistent within the Department of Human Re- 
sources. 

Lyomment Procedures: Comments may be pre- 
sented in writing anytime before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
Rule by calling or writing to Shamese Ransome, 
Division of Social Services, 325 N. Salisbury 
Street, Raleigh, NC 27603-5905, (919) 733-3055. 

tLditor's Note: This Rule was filed as a tempo- 
rary rule effective July 27, 1994 for a period of 
180 days or until the permanent rule becomes 
effective, whichever is sooner. 



CHAPTER 42 



INDIVIDUAL AND FAMILY 
SUPPORT 



SUBCHAPTER 42R - ADULT DAY CARE - 
STATE FUND 

SECTION .0200 - STATE ADULT DAY 
CARE FUND 

.0201 NATURE AND PURPOSE OF STATE 
ADULT DAY CARE FUND 

(a) The State Adult Day Care Fund is used for 
adult day care services provided through county 
departments of social services for the purpose of 



enabling people to remain in or return to their own 
homes. 

(b) The fund is used to increase state financial 
participation in the costs of this service. 

(c) Maximum rates havo boon e s tablish e d by th e 
North Carolina Social S e rvic e s Commission for th e 
purohooo of adult day oar e s e p i io e s und e r a v e ndor 
agr e em e nt. — Information r e garding maximum rate s 
is contain e d in policy mat e rial of th e North Caroli 
na Division of Social S e rvic e s and is available in 
aooordono e with 10 NCAC 35A .0003. The 
maximum rate for the purchase of adult day care 
services under a vendor agreement shall not 
exceed five hundred dollars ($500.00) per month. 
of which four hundred and fifty five dollars 
($455.00) shall be for the purchase of daily care 
and forty five dollars ($45.00) shall be for 
transportation. 

Statutory Authority G.S. 1438-153; 1993 S.L., c. 
591, s. 2(a). 

TITLE 12 - DEPARTMENT OF JUSTICE 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the N. C Private Protective Servic- 
es Board intends to amend rules cited as 12 NCAC 
7D .0202, .0205 and adopt 7D .0112. 

Ihe proposed effective date of this action is 
December 1, 1994. 

1 he public hearing will be conducted at 2:00 
p.m. on September 16, 1994 at the State Bureau of 
Investigation, Conference Room, 3320 Old Gamer 
Road, Raleigh, N C 27626-0500. 

Keason for Proposed Action: 

12 NCAC 7D .0112 - The rule requires a licensee 

to file a report with the Board if a licensee or 

registrant discharges a firearm while engaged in 

the private protective services profession. 

12 NCAC 7D .0202 - Sets a specific licensing fee 

of $50. 00 for a special limited guard and patrol 

license. 

12 NCAC 7D .0205 - Clarify language in the rule 

to refer to 'Company " instead of "Corporate " and 

to specifically exempt a sole proprietorship that is 

owned and operated by an individual licensee. 

Lyomment Procedures: Interested persons may 
present their views either orally or in writing at 



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802 



PROPOSED RULES 



the hearing. The Record of Hearing will be open 
for receipt of written comments through October 3, 
1994. Written comments must be delivered to the 
Private Protective Services Board, 3320 Old 
Gamer Road, Raleigh. N. C. 27627-0500. 

CHAPTER 7 - PRIVATE 
PROTECTIVE SERVICES 

SUBCHAPTER 7D - PRIVATE 
PROTECTIVE SERVICES BOARD 

SECTION .0100 - ORGANIZATION 
AND GENERAL PROVISIONS 

.0112 REPORTING REQUIREMENTS 
FOR THE DISCHARGE OF 
FIREARMS 

If a licensee or registrant discharges a firearm 
while engaged in the private protective services 
business, the licensee shall notify the Board either 
in person or by telephone no later than the first 
business day following the incident. The licensee 
shall also file a written report to the Board within 
five working days of the incident. In the report. 
the licensee shall state the name of the individual 
who discharged the firearm, the type of weapon 
discharged, the location of the incident, the law 
enforcement agency investigating the incident, the 
events leading to the discharge of the firearm, and 
any bodily injuries occurring from the incident. 
This Rule shall not be construed to app ly to a 
weapon that is discharged during a training course 
that has been a pproved by the Board. 

Statutory Authority G. S. 74C-5. 

SECTION .0200 - LICENSES: 
TRAINEE PERMITS 

.0202 FEES FOR LICENSES 

AND TRAINEE PERMITS 

(a) Application, license and trainee permit fees 
are as follows: 

(1) one hundred and fifty dollars ($150.00) 
non-refundable application fee; 

(2) two hundred dollars ($200.00) annual 
fee for a new or renewal license; 

(3) two hundred dollars ($200.00) annual 
trainee permit fee; 

(4) fifty dollars ($50.00) new or renewal 
fee for each license in addition to the 
basic license; 

(5) twenty five dollars ($25.00) duplicate 
license fee; 



(6) one hundred dollars ($100.00) late 
renewal fee in addition to the renewal 
fee; 

(7) one hundred dollars ($100.00) tempo- 
rary license fee; Bsd 

(8) fifty dollars ($50.00) branch office 
license fe©r i and 

(9} fifty dollars ($50.00) special limited 
guard and patrol licensee fee. 
(b) Fees shall be paid in the form of a check or 
money order made payable to the Private Protec- 
tive Services Board. 

Statutory Authority G. S. 74C-9. 

.0205 COMPANY BUSINESS LICENSE 

(a) Any firm, association, or corporation re- 
quired to be licensed pursuant to G.S. 74C-2(a) 
shall submit an application for a oorpomte compa- 
ny business license on a form provided by the 
Board. Only a sole proprietorship which is owned 
and operated by an individual licensee shall be 
exempt from this Rule. This application for 
license shall call for such information as the firm, 
association, or corporation name; the address of its 
principal office within the State; any past convic- 
tion for criminal offenses of any oorpwrnt e compa- 
ny director, or officer; information concerning the 
past revocation, suspension or denial of a business 
or professional license to any director, or officer; 
a list of all directors and officers of the firm, 
association, or corporation; a list of all persons, 
firms, associations, corporations or other entities 
owning ten percent or more of the outstanding 
shares of any class of stock; and the name and 
address of the qualifying agent. 

(b) In addition to the items required in Para- 
graph (a) of this Rule, a foreign an out-of-state 
oorpomtion company shall further qualify by filing 
with its application for a license, a copy of its 
certificate of authority to transact business in this 
state issued by the North Carolina Secretary of 
State in accordance with G.S. 55-131 and a con- 
sent to service of process and pleadings which 
shall be authenticated by its corporate company 
seal and accompanied by a duly certified copy of 
the resolution of the board of directors authorizing 
the proper officer or officers to execute said 
consent. 

(c) After filing a completed written application 
with the Board, the Board shall conduct a back- 
ground investigation to ascertain if the qualifying 
agent is in a management position. The Board 
shall also determine if the directors, or officers 
have the requisite good moral character as defined 



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PROPOSED RULES 



in G.S. 74C-8(d)(2). It shall be prima fecie 
evidence of good moral character if a director or 
officer has not been convicted by any local, State, 
federal, or military court of any crime involving 
the use, carrying, or possession of a firearm; 
conviction of any crime involving the use, posses- 
sion, sale, manufecture, distribution, or transporta- 
tion of a controlled substance, drug, narcotic, or 
alcoholic beverage; conviction of a crime involving 
assault or an act of violence; conviction of a crime 
involving breaking or entering, burglary, larceny, 
or any offense involving moral turpitude; or does 
not have a history of addiction to alcohol or a 
narcotic drug; provided that, for purposes of this 
Rule, "conviction" means and includes the entry of 
a plea of guilty or no contest or a verdict rendered 
in open court by a judge or jury. 

(d) Upon satisfactory completion of the back- 
ground investigation, a oorpomt e company busi- 
ness license may be issued. This license shall be 
conspicuously displayed at the principle place of 
business within the State of North Carolina. 

(e) The oorpomt e company business license shall 
be issued only to the oorpo ration business entity 
and shall not be construed to extend to the licens- 
ing of its officers and employees. 

(f) The issuance of the oorpomte company 
business license is issued to the firm, association, 
or corporation in addition to the license issued to 
the qualifying agent. Therefore, the qualifying 
agent for the firm, association, or corporation 
which has been issued the oorpomt e company 
business license shall be responsible for assuring 
compliance with G.S. 74C. 

Statutory Authority G.S. 74C-2(a); 74C-5. 

Iiotice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Alarm Systems Licensing 
Board intends to amend rule cited as 12 NCAC 11 
.0209. 

1 he proposed effective date of this action is 
December 1, 1994. 

Ihe public hearing will be conducted at 2:00 
p.m. on September 16, 1994 at the State Bureau of 
Investigation, Conference Room, 3320 Old Gamer 
Road, Raleigh, N. C. 27626-0500. 



Mxeasonfor Proposed Action: Clarify language in 
the rule to specifically exempt a sole proprietorship 
that is owned and operated by the licensee. 

(comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. The Record of Hearing will be open 
for receipt of written comments through October 3, 
1994. Written comments must be delivered to the 
Private Protective Services Board, 3320 Old 
Gamer Road, Raleigh, N.C 27627-0500. 

CHAPTER 11 - N.C ALARM 
SYSTEMS LICENSING BOARD 

SECTION .0200 - PROVISIONS 
FOR LICENSEES 

.0209 COMPANY BUSINESS LICENSE 

(a) Any firm, association, or corporation re- 
quired to be licensed pursuant to G.S. 74D-2(a) 
shall submit an application for a oorpomte compa- 
ny business license on a form provided by the 
Board. A sole proprietorship that is owned and 
operated by an individual holding a current alarm 
systems business license shall be exempt from this 
Rule. This application for license shall call for 
such information as the firm, association, or 
corporation name; the address of its principal 
office within the State; any past conviction for 
criminal offenses of any oorpomte company direc- 
tor or officer; information concerning the past 
revocation, suspension or denial of a business or 
professional license to any director or officer; a 
list of all directors and officers of the firm, associ- 
ation, or corporation; a list of all persons, firms, 
associations, corporations or other entities owning 
10 [jercent or more of the outstanding shares of 
any class of stock; and the name and address of 
the qualifying agent. 

(b) In addition to the items required in Para- 
graph (a) of this Rule, a foreign an out-of-state 
oorpomtion company shall further qualify by filing 
with its application for a license, a copy of its 
certificate of authority to transact business in this 
state issued by the North Carolina Secretary of 
State in accordance with G.S. 55-131 and a con- 
sent to service of process and pleadings which 
shall be authenticated by its oorpomte company 
seal and accompanied by a duly certified copy of 
the resolution of the board of directors authorizing 
the proper officer or officers to execute said consent. 

(c) After filing a completed written application 



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804 



PROPOSED RULES 



with the Board, the Board shall conduct a back- 
ground investigation to ascertain if the qualifying 
agent is in a management position. TTie Board 
shall also determine if the directors or officers 
have the requisite good moral character as defined 
in G.S. 74D-6(3). It shall be prima facie evidence 
of good moral character if a director or officer has 
not been convicted by any local. State, federal, or 
military court of any crime involving the use, 
carrying, or possession of a firearm; conviction of 
any crime involving the use, possession, sale, 
manufacture, distribution, or transportation of a 
controlled substance, drug, narcotic, or alcoholic 
beverage; conviction of a crime involving assault 
or an act of violence; conviction of a crime involv- 
ing breaking or entering, burglary, larceny, or any 
offense involving moral turpitude; or does not 
have a history of addiction to alcohol or a narcotic 
drug; provided that, for purposes of this Section, 
"conviction" means and includes the entry of a 
plea of guilty or no contest or a verdict rendered 
in open court by a judge or jury. 

(d) Upon satisfactory completion of the back- 
ground investigation, a oorpomt e company busi- 
ness license may be issued. This license shall be 
conspicuously displayed at the principle place of 
business within the State of North Carolina. 

(e) The corporat e company business license shall 
be issued only to the corporation and shall not be 
construed to extend to the licensing of its direc- 
tors, officers, or employees. 

(f) The issuance of the oorpomto company 
business license is issued to the firm, association, 
or corporation in addition to the license issued to 
the qualifying agent. Therefore, the qualifying 
agent for the firm, association, or corporation 
which has been issued the oorpomt e company 
business license shall be responsible for assuring 
compliance with G.S. 74D. 

Statutory Authority G. S. 74D-2(a); 74D-5. 

TITLE ISA - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the DEHNR-DEM-Air Quality 
intends to adopt rules cited as 15A NCAC 2D 
.0955 - .0957; 2Q .0312. .0525, .0607 and amend 
2D .0501. .0516. .0530; 2Q .0507. .0518. 

1 he proposed effective dates of this action are: 



ISA NCAC 2D .0501, .0516, .0530; 2Q .0312, 
.0507, .0518, .0525, .0607 - February 1, 1995. 
ISA NCAC 2D .0955 - .0957 - May 1, 1995. 

1 he public hearing will be conducted at: 

7:00 p.m. 
September 22, 1994 

Charlotte/Mecklenburg Government Center 

Conference Center-2nd Floor 

600 East 4th Street 

Charlotte, North Carolina 

7:00 p.m. 
September 29, 1994 

Archdale Building 

Ground Floor Hearing Room 

512 N. Salisbury Street 

Raleigh, North Carolina 

Mxeason for Proposed Action: 
The amendments to 15A NCAC 2D .0501 and 
.0516 are to clarify sulfur dioxide stack testing 
compliance methods, to update referenced Ameri- 
can Standard Testing Methods, and to clarify that 
the general sulfur dioxide emissions standand does 
not apply to spodumene ore roasting. 
The amendment to 15A NCAC 2D .0530 establish- 
es an increment level for PM-10 to replace the 
increment level for total suspended particulate 
(TSP) by changing the rule to refer to the latest 
amendment of the federal regulation in 40 CFR 
51.166 

The proposed new rules 15 A NCAC 2D .0955, 
.0956, and .0957 will establish reasonably avail- 
able control technology (RACT)for thread bonding 
manufacturing facilities , glass Christmas ornament 
manufacturing, and commercial bakeries. These 
rules will implement federal requirements for 
RACT and only apply in nonattainment and main- 
tenance areas. 

The proposed new rules 15A NCAC 2Q .0312, 
.0525, and .0607, and amendments to rules 15 A 
NCAC 2Q .0507 and .0518 will establish process- 
ing schedules for permit applications to ensure 
timely review of the applications. 

i^omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearings. Any person desirins to comment for 
more than three minutes is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearine. The hearing 
record will remain open until October 31, 1994, to 



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PROPOSED RULES 



receive additional written statements. 
Comments should be sent to and additional infor- 
mation concerning the hearing or the proposals 
may be obtained by contacting: 

Mr. Thomas C. Allen 

Division of Environmental Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

(919) 733-1489 

Fiscal Note: This Rule ISA NCAC 2D .0530 
affects the expenditures or revenues of local 
funds. A fiscal note was submitted to the Fiscal 
Research Division on February 23, 1994, OSBM 
on March 4, 1994, N. C League of Municipalities 
on February 23, 1994, and N. C. Association of 
County Commissioners on February 23, 1994. 

CHAPTER 2 - ENVreONMENTAL 
MANAGEMENT 

SUBCHAPTER 2D - Am POLLUTION 
CONTROL REQUIREMENTS 

SECTION .0500 - EMISSION 
CONTROL STANDARDS 

.0501 COMPLIANCE WITH EMISSION 
CONTROL STANDARDS 

(a) Purpose and Scope. The purpose of this 
Rule is to assure orderly compliance with emission 
control standards found in this Section. This Rule 
shall apply to all air pollution sources, both com- 
bustion and non-combustion. 

(b) In determining compliance with emission 
control standards, means shall be provided by the 
owner to allow periodic sampling and measuring 
of emission rates, including necessary ports, 
scaffolding and power to operate sampling equip- 
ment; and upon the request of the Division of 
Environmental Management, data on rates of 
emissions shall be supplied by the owner. 

(c) Testing to determine compliance shall be in 
accordance with the following procedures, except 
as may be otherwise required in Rules .0524, 
.0525, and .0604 of this Subchapter. 

(1) Method 1 of Appendix A of 40 CFR 
Part 60 shall be used to select a suitable 
site and the appropriate number of test 
points for the following situations: 

(A) particulate testing, 

(B) velocity and volume flow rate mea- 
surements; 

(C) testing for acid mist or other pollut- 



ants which occur in liquid droplet 
form, 

(D) any sampling for which velocity and 
volume flow rate measurements are 
necessary for computing final test 
results, and 

(E) any sampling which involves a sam- 
pling method which specifies 
isokinetic sampling. (Isokinetic 
sampling is sampling in which the 
velocity of the gas at the point of 
entry into the sampling nozzle is 
equal to the velocity adjacent to the 
nozzle.) 

Method 1 shall be applied as written 
with the following clarifications: 
Testing installations with multiple 
breechings can be accomplished by 
testing the discharge stack(s) to which 
the multiple breechings exhaust. If the 
multiple breechings are individually 
tested, then 

Method 1 shall be applied to each 
breeching individually. If test ports in 
a duct are located less than two 
diameters downstream from any 
disturbance (fen, elbow, change in 
diameter, or any other physical feature 
that may disturb the gas flow) or 
one-half diameter upstream from any 
disturbance, the acceptability of the test 
location shall be subject to the approval 
of the Director, or his designee. 

(2) Method 2 of Appendix A of 40 CFR 
Part 60 shall be applied as written and 
used concurrently with any test method 
in which velocity and volume flow rate 
measurements are required. 

(3) Sampling procedures for determining 
compliance with particulate emission 
control standards shall be in accordance 
with Method 5 of Appendix A of 40 
CFR Part 60. Method 17 of Appendix 
A of 40 CFR Part 60 may be used 
instead of Method 5 provided that the 
stack gas temperature does not exceed 
320° F. The minimum time per test 
point for particulate testing shall be two 
minutes and the minimum time per test 
run shall be one hour. The sample gas 
drawn during each test run shall be at 
least 30 cubic feet. A number of 
sources are known to emit organic 
material (oil, pitch, plasticizers, etc.) 
which exist as finely divided liquid 



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806 



PROPOSED RULES 



droplets at ambient conditions. These 
materials cannot be satisfactorily 
collected by means of the above 
Method 5. In these cases the 
Commission may require the use of 
Method 5 as proposed on August 17, 
1971, in the Federal Register, Volume 
36, Number 159. 
(4) The procedures for determining 
compliance with sulfur dioxide emission 
control standards for fuel burning 
sources may be either by determining 
sulfur content with fuel analysis or by 
stack sampling. Combustion sources 
choosing to demonstrate compliance 
through stack sampling shall follow 
procedures described in Method 6 of 
Appendix A of 40 CFR Part 60. When 
Method 6 of Appendix A of 40 CFR 
Part 60 is used to determine 
compliance, compliance shall be 
determined by averaging six 20-minute 
samples taken over such a period of 
time that no more than 20 minutes 
elapses between any two consecutive 
samples. If a source chooses to 
demonstrate compliance by analysis of 
sulfur in fuel, sampling, preparation, 
and analysis of fuels shall be in 
accordance with the following 
American Society of Testing and 
Materials (ASTM) methods: 

(A) coal: 

(i) sampling--ASTM Method D 

2234-83; 
(ii) preparation— ASTM Method D 

2013-^; 
(iii) gross calorific value 

(BTU)--ASTM Method D 

2015-«5; 
(iv) moisture content— ASTM Method 

D 3173-8§or D 5412 : 
(v) sulfur content— ASTM Method D 

3177-84 or ASTM Method D 

4239-85; 

(B) oil: 

(i) sampling— A sample shall be 
collected at the pipeline inlet to 
the fuel burning unit after 
sufficient fuel has been drained 
from the line to remove all fuel 
that may have been standing in 
the line; 

(ii) heat of combustion (BTU)-ASTM 
Method D 240-85 or D 2015 : 



(iii) sulfur content— ASTM Method D 
12 9 6 4 (r e approv e d 197 8 ) or D 
1552 . 
The sulfur content and BTU content of 
the fuel shall be reported on a dry 
basis. When the test methods described 
in Parts (A) or (B) of this Subparagraph 
are used to demonstrate that the 
ambient air quality standards for sulfur 
dioxide are being protected, the sulfur 
content shall be determined at least 
once per year from a composite of at 
least three or 24 samples taken at equal 
time intervals from the fuel being 
burned over a three-hour or 24-hour 
period, respectively, whichever is the 
time period for which the ambient 
standard is most likely to be exceeded; 
this requirement shall not apply to 
sources that are only using fuel analysis 
in place of continuous monitoring to 
meet the requirements of Section .0600 
of this Subchapter. 

(5) Sulfuric acid manufecturing plants and 
spodumene ore roasting plants shall 
demonstrate compliance with Rules 
.0517 and .0527, respectively, of this 
Section by using Method 8 of Appendix 
A of 40 CFR Part 60. Compliance 
shall be determined by averaging 
emissions measured by three one-hour 
tests. 

(6) All oth e r industrial processes not 
covered under Subparagraph (5) of this 
Paragraph emitting sulfur dioxide shall 
demonstrate compliance by sampling 
procedures described in Method 6 of 
Appendix A of 40 CFR Part 60. 
Compliance shall be determined by 
averaging six 20-minute samples taken 
over such a period of time that no more 
than 20 minutes elapses between any 
two consecutive samples. 

(7) Sampling procedures to demonstrate 
compliance with emission standards for 
nitrogen oxides shall be in accordance 
with the procedures set forth in Method 
7 of Appendix A of 40 CFR Part 60. 

(8) Method 9 of Appendix A of 40 CFR 60 
shall be used when opacity is 
determined by visual observation. 

(9) Notwithstanding the stated applicability 
to new source performance standards or 
primary aluminum plants, the 
procedures to be used to determine 



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September 1, 1994 



PROPOSED RULES 



fluoride emissions are: 

(A) for sampling emissions from stacks, 
Method 13 A or 13B of Appendix A 
of 40 CFR Part 60, 

(B) for sampling emissions from roof 
monitors not employing stacks or 
pollutant collection systems. Method 
14 of Appendix A of 40 CFR Part 60, 
and 

(C) for sampling emissions from roof 
monitors not employing stacks but 
equipped with pollutant collection 
systems, the procedure under 40 CFR 
60.8(b), except that the Director of 
the Division of Environmental 
Management shall be substituted for 
the administrator. 

(10) Emissions of total reduced sulfur shall 
be measured by the test procedure 
described in Method 16 of Appendix A 
of 40 CFR Part 60 or Method 16A of 
Appendix A of 40 CFR Part 60. 

(11) Emissions of mercury shall be 
measured by the test procedure 
described in Method 101 or 102 of 
Appendix B of 40 CFR Part 61 . 

(12) Each test (excluding fuel samples) shall 
consist of three repetitions or runs of 
the applicable test method. For the 
purpose of determining compliance with 
an applicable emission standard the 
average of results of all repetitions shall 
apply. In the event that a sample is 
accidentally lost or conditions occur in 
which one of the three runs must be 
discontinued because of forced 
shutdown, failure of an irreplaceable 
portion of the sample train, extreme 
meteorological conditions, or other 
circumstances, beyond the owner or 
operator's control, and there is no way 
to obtain another sample; then 
compliance may, upon the Director's 
approval be determined using the 
arithmetic average of the results of the 
two other runs. 

(13) In conjunction with performing certain 
test methods prescribed in this Rule, the 
determination of the fraction of carbon 
dioxide, oxygen, carbon monoxide and 
nitrogen in the gas being sampled is 
necessary to determine the molecular 
weight of the gas being sampled. 
Collecting a sample for this purpose 
shall be done in accordance with 



Method 3 of Appendix A of 40 CFR 
Part 60: 

(A) The grab sample technique may also 
be used with instruments such as 
Bacharach Fyrite (trade name) with 
the following restrictions: 

(i) Instruments such as the Bacharach 
Fyrite (trade name) may only be 
used for the measurement of 
carbon dioxide. 

(ii) Repeated samples shall be taken 
during the emission test run to 
account for variations in the 
carbon dioxide concentration. No 
less than four samples shall be 
taken during a one-hour test run, 
but as many as necessary shall be 
taken to produce a reliable 
average. 

(iii) The total concentration of gases 
other than carbon dioxide, oxygen 
and nitrogen shall be less than one 
percent. 

(B) For fuel burning sources, 
concentrations of oxygen and nitrogen 
may be calculated from combustion 
relations for various fuels. 

(14) For those processes for which the 
allowable emission rate is determined 
by the production rate, provisions shall 
be made for controlling and measuring 
the production rate. The source shall 
be responsible for ensuring, within the 
limits of practicality, that the equipment 
or process being tested is operated at or 
near its maximum normal production 
rate or at a lesser rate if specified by 
the Director or his delegate. The 
individual conducting the emission test 
shall be responsible for including with 
his test results, data which accurately 
represent the production rate during the 
test. 

(15) Emission rates for wood or fuel burning 
sources which are expressed in units of 
pounds per million BTU shall be 
determined by the "Oxygen Based F 
Factor Procedure" described in 40 CFR 
Part 60, Appendix A, Method 19, 
Section 5. Other procedures described 
in Method 19 may be used subject to 
the approval of the Director, Division 
of Environmental Management. To 
provide data of sufficient accuracy to 
use with the F-factor methods, an 



NORTH CAROLINA REGISTER 



September 1, 1994 



808 



PROPOSED RULES 



integrated (bag) sample shall be taken 
for the duration of each test run. In the 
case of simultaneous testing of multiple 
ducts, there shall be a separate bag for 
each sampling train. The bag sample 
shall be analyzed with an Orsat 
analyzer in accordance with Method 3 
of Appendix A of 40 CFR Part 60. 
(The number of analyses and the 
tolerance between analyses are specified 
in Method 3.) The specifications 
indicated in Method 3 for the 
construction and operation of the bag 
sampling apparatus shall be followed. 
(16) Particulate testing on steam generators 
that utilize soot blowing as a routine 
means for cleaning heat transfer 
surfaces shall be conducted so that the 
contribution of the soot blowing is 
represented as follows: 

(A) If the soot blowing periods are 
expected to represent less than 50 
percent of the total particulate 
emissions, one of the test runs shall 
include a soot blowing cycle. 

(B) If the soot blowing periods are 
expected to represent more than 50 
percent of the total particulate 
emissions then two of the test runs 
shall each include a soot blowing 
cycle. 

Under no circumstances shall all three 
test runs include soot blowing. The 
average emission rate of particulate 
matter is calculated by the equation: 

Eavg = Es S(A iiB} _(_ En/R;S-BS\ 
AR R AR 

Eavg equals the average emission rate 
in pounds f>er million Btu for daily 
operating time. Eg equals the average 
emission rate in pounds per million Btu 
of sample(s) containing soot blowing. 
En equals the average emission rate in 
pounds per million Btu of sample(s) 
with no soot blowing. A equals hours 
of soot blowing during sample(s). B 
equals hours without soot blowing 
during sample(s) containing 
sootblowing. R equals average hours 
of of)eration per 24 hours. S equals 
average hours of soot blowing per 24 
hours. If large changes in boiler load 
or stack flow rate occur during soot 
blowing, other methods of prorating the 



emission rate may be considered more 
appropriate; for these tests the Director 
or his designee may approve an 
alternate method of prorating. 

(17) Emissions of volatile organic 
compounds shall be measured by the 
appropriate test procedure in Section 
.0900 of this Subchapter. 

(18) Upon prior approval by the Director or 
his delegate, test procedures different 
from those described in this Rule may 
be used if they will provide equivalent 
or more reliable results. Furthermore, 
the Director or his delegate may 
prescribe alternate test procedures on an 
individual basis when he considers that 
the action is necessary to secure reliable 
test data. In the case of sources for 
which no test method is named, the 
Director or his delegate may prescribe 
or approve methods on an individual 
basis. 

(d) All e xisting s ouro e e of e mission Bholl comply 
with applicabl e r e gulations and s tondordo at the 
e arli e st possibl e date. All new sources shall be in 
compliance prior to begiiming operations. 

(e) In addition to any control or manner of 
operation necessary to meet emission standards in 
this Section, any source of air pollution shall be 
operated with such control or in such manner that 
the source shall not cause the ambient air quality 
standards of Section .0400 of this Subchapter to be 
exceeded at any point beyond the premises on 
which the source is located. When controls more 
stringent than named in the applicable emission 
standards in this Section are required to prevent 
violation of the ambient air quality standards or 
are required to create an offset, the permit shall 
contain a condition requiring these controls. 

(f) The Bubble Concept. A facility with 
multiple emission sources or multiple facilities 
within the same area may choose to meet the total 
emission limitation for a given pollutant through a 
different mix of controls than that required by the 
rules in this Section or Section .0900 of this 
Subchapter. 

(1) In order for this mix of alternative 

controls to be permitted the Director 

shall determine that the following 

conditions are met: 

(A) Sources to which Rules .0524, .0525, 

.0530, and .0531 of this Section, the 

federal New Source Performance 

Standards (NSPS), the federal 

National Emission Standards for 



809 



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PROPOSED RULES 



Hazardous Air Pollutants 
(NESHAPS), regulations established 
pursuant to Section 111 (d) of the 
federal Clean Air Act, or state or 
federal Prevention of Significant 
Deterioration (PSD) requirements 
apply, will have emissions no larger 
than if there were not an alternative 
mix of controls; 

(B) The facility (or fecilities) is located in 
an attainment area or an unclassified 
area or in an area that has been 
demonstrated to be attainment by the 
statutory deadlines (with reasonable 
further progress toward attainment) 
for those pollutants being considered; 

(C) All of the emission sources affected 
by the alternative mix are in 
compliance with applicable 
regulations or are in compliance with 
established compliance agreements; 
and 

(D) The review of an application for the 
proposed mix of alternative controls 
and the enforcement of any resulting 
permit will not require expenditures 
on the part of the State in excess of 
five times that which would otherwise 
be required. 

(2) The owner(s) or operator(s) of the 
facility (fecilities) shall demonstrate to 
the satisfaction of the Director that the 
alternative mix of controls is equivalent 
in total allowed emissions, reliability, 
enforceability, and environmental 
impact to the aggregate of the otherwise 
applicable individual emission 
standards; and 

(A) that the alternative mix approach does 
not interfere with attainment and 
maintenance of ambient air quality 
standards and does not interfere with 
the PSD progrcmi; this demonstration 
shall include modeled calculations of 
the amount, if any, of PSD increment 
consumed or created; 

(B) that the alternative mix approach 
conforms with reasonable further 
progress requirements in any 
nonattainment area; 

(C) that the emissions under the 
alternative mix approach are in feet 
quantifiable, and trades among them 
are even; 

(D) that the pollutants controlled under the 



alternative mix approach are of the 

same criteria pollutant categories, 

except that emissions of some criteria 

pollutants used in alternative emission 

control strategies are subject to the 

limitations as defined in 44 FR 71784 

(December 11, 1979), Subdivision 

D. l.c.ii. The Federal Register 

referenced in this Part is hereby 

incorporated by reference and does 

not include subsequent amendments or 

editions. 

The demonstrations of equivalence shall 

be performed with at least the same 

level of detail as The North Carolina 

State Implementation plan for Air 

Quality demonstration of attainment for 

the area in question. Moreover, if the 

fecility involves another fecility in the 

alternative strategy, it shall complete a 

modeling demonstration to ensure that 

air quality is protected. Demonstrations 

of equivalency shall also take into 

account differences in the level of 

reliability of the control measures or 

other uncertainties. 

(3) The emission rate limitations or control 
techniques of each source within the 
fecility (fecilities) subjected to the 
alternative mix of controls shall be 
specified in the fecility's (fecilities') 
permits(s). 

(4) Compliance schedules and enforcement 
actions shall not be affected because an 
application for an alternative mix of 
controls is being prepared or is being 
reviewed. 

(5) The Director may waive or reduce 
requirements in this Paragraph up to the 
extent allowed by the Emissions 
Trading Policy Statement published in 
the Federal Register of April 7, 1982, 
pages 15076-15086, provided that the 
analysis required by Paragraph (g) of 
this Rule shall support any waiver or 
reduction of requirements. The Federal 
Register referenced in this Paragraph is 
hereby incorporated by reference and 
does not include subsequent 
amendments or editions. 

(g) In a permit application for an alternative mix 
of controls under Paragraph (f) of this Rule, the 
owner or operator of the fecility shall demonstrate 
to the satisfection of the Director that the proposal 
is equivalent to the existing requirements of the 



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810 



PROPOSED RULES 



SIP in total allowed emissions, enforceability, 
reliability, and environmental impact. The 
Director shall provide for public notice with an 
opportunity for a request for public hearing 
following the procedures under 15 A NCAC 2Q 
.0300 or .0500, as applicable. If and when a 
permit containing these conditions is issued, it will 
become a part of the state implementation plan 
(SIP) as an appendix available for inspection at the 
department's regional offices. Until the U.S. 
Environmental Protection Agency (EPA) approves 
the SIP revision embodying the permit containing 
an alternative mix of controls, the facility shall 
continue to meet the otherwise applicable existing 
SIP requirements. The revision will be approved 
by EPA on the basis of the revision's consistency 
with EPA's "Policy for Alternative Emission 
Reduction Options Within State Implementation 
Plans" as promulgated in the Federal Register of 
December 11, 1989, pages 71780-71788, and 
subsequent rulings. 

(h) The referenced ASTM test methods in this 
Rule are hereby incorporated by reference and 
include subsequent amendments and editions. 
Copies of referenced ASTM test methods or 
Federal Registers may be obtained from the 
Division of Environmental Management, P.O. Box 
29535, Raleigh, North Carolina 27626-0535 at a 
cost of ten cents ($0. 10) per page. 

Statutory Authority G.S. 143-215. 3(a)(1); 
143-215. 107(a)(5). 

.0516 SULFUR DIOXIDE EMISSIONS 
FROM COMBUSTION SOURCES 

(a) Emission of sulfur dioxide from any source 
of combustion that is discharged from any vent, 
stack, or chimney shall not exceed 2.3 pounds of 
sulfur dioxide per million BTU input. Sulfur 
dioxide formed by the combustion of sulfur in 
fuels, wastes, ores, and other substances shall be 
included when determining compliance with this 
standard. Sulfur dioxide formed or reduced as a 
result of treating flue gases with sulfur trioxide or 
other materials shall also be accounted for when 
determining compliance with this standard. 

(b) A source subject to an emission standard for 
sulfur dioxide in R e gulation Rule .0524^ ef .0525^ 
or .0527 of this Section shall meet that standard. 

Statutory Authority G.S 143-215. 3(a) (1); 143- 
215. 107(a) (5). 

.0530 PREVENTION OF SIGNIFICANT 
DETERIORATION 



(a) The purpose of the Rule is to implement a 
program for the prevention of significant 
deterioration of air quality as required by 40 CFR 
51.166 as amended Gotober 17, 19 88 June 3^ 
1993 . 

(b) For the purposes of this Rule the definitions 
contained in 40 CFR 51.166(b) and 40 CFR 
51.301 shall apply. The reasonable period 
specified in 40 CFR 51.166(b)(3)(ii)shall be seven 
years. The limitation specified in 40 CFR 
51.166(b)(15)(ii) shall not apply. 

(c) All areas of the State shall be classified as 
Class II except that the following areas are Class 
I: 

(1) Great Smoky Mountains National Park; 

(2) Joyce Kilmer Slickrock National 
Wilderness Area; 

(3) Linville Gorge National Wilderness 
Area; 

(4) Shining Rock National Wilderness 
Area; 

(5) Swanquarter National Wilderness Area. 

(d) Redesignations of areas to Class I or II may 
be submitted as state proposals to the 
Administrator of the Environmental Protection 
Agency (EPA), if the requirements of 40 CFR 
51.166(g)(2) are met. Areas may be proposed to 
be redesignated as Class III, if the requirements of 
40 CFR 51.166(g)(3) are met. Redesignations 
may not, however, be proposed which would 
violate the restrictions of 40 CFR 51.166(e). 
Lands within the boundaries of Indian Reservations 
may be redesignated only by the appropriate Indian 
Governing Body. 

(e) In areas designated as Class I, II, or III, 
increases in pollutant concentration over the 
baseline concentration shall be limited to the 
values set forth in 40 CFR 51.166(c). However, 
concentration of the pollutant shall not exceed 
standards set forth in 40 CFR 51.166(d). 

(f) Concentrations attributable to the conditions 
described in 40 CFR 51.166(f)(1) shall be 
excluded in determining compliance with a 
maximum allowable increase. However, the 
exclusions referred to in 40 CFR 51.I66(f)(l)(i)or 
(ii) shall be limited to five years as described in 40 
CFR 51.166(f)(2). 

(g) Major stationary sources and major 
modifications shall comply with the requirements 
contained in 40 CFR 51 . 166(i) and by extension in 
40 CFR 51.166CJ) through (o). The transition 
provisions allowed by 40 CFR 52.21 (i)(ll)(i) and 
(ii) and (m)(l)(vii) and (viii) are hereby adopted 
under this Rule. The minimum requirements 
described in the portions of 40 CFR 51.166 



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PROPOSED RULES 



referenced in this Paragraph are hereby adopted as 
the requirements to be used under this Rule, 
except as otherwise provided in this Rule. 
Wherever the language of the portions of 40 CFR 
51.166 referenced in this Paragraph speaks of the 
"plan," the requirements described therein shall 
apply to the source to which they pertain, except 
as otherwise provided in this Rule. Whenever the 
portions of 40 CFR 51.166 referenced in this 
Paragraph provide that the State plan may exempt 
or not apply certain requirements in certain 
circumstances, those exemptions and provisions of 
nonapplicability are also hereby adopted under this 
Rule. However, this provision shall not be 
interpreted so as to limit information that may be 
requested from the owner or operator by the 
Director as specified in 40 CFR 51.166(n)(2). 

(h) 15A NCAC 2Q .0102 and .0302 are not 
applicable to any source to which this Rule 
applies. The owner or operator of the sources to 
which this Rule applies shall apply for and receive 
a permit as required in 15A NCAC 2Q .0300 or 
.0500. 

(i) When a particular source or modification 
becomes a major stationary source or major 
modification solely by virtue of a relaxation in any 
enforceable limitation which was established after 
August 7, 1980, on the capacity of the source or 
modification to emit a pollutant, such as a 
restriction on hours of operation, then the 
provisions of this Rule shall apply to the source or 
modification as though construction had not yet 
begun on the source or modification. 

(j) Volatile organic compounds exempted from 
coverage in Subparagraph (c)(5) of Rule .0531 of 
this Section shall also be exempted when 
calculating source applicability and control 
requirements under this Rule. 

(k) The degree of emission limitation required 
for control of any air pollutant under this Rule 
shall not be affected in any manner by: 

(1) that amount of a stack height, not in 
existence before December 31, 1970, 
that exceeds good engineering practice; 
or 

(2) any other dispersion technique not 
implemented before then. 

(1) A substitution or modification of a model as 
provided for in 40 CFR 51.166(1) shall be subject 
to public comment procedures in accordance with 
the requirements of 40 CFR 51.166(q). 

(m) Permits may be issued on the basis of 
innovative control technology as set forth in 40 
CFR 51.166(s)(l) if the requirements of 40 CFR 
51.166(s)(2) have been met, subject to the 



condition of 40 CFR 51.166(s)(3), and with the 
allowance set forth in 40 CFR 51.166(s)(4). 

(n) If a source to which this Rule applies 
impacts an area designated Class I by requirements 
of 40 CFR 51.166(e), notice to EPA will be 
provided as set forth in 40 CFR 51.166(p)(l). If 
the Federal Land Manager presents a 
demonstration described in 40 CFR 51.166(p)(3) 
during the public comment period or public 
hearing to the Director and if the Director concurs 
with this demonstration, the permit application 
shall be denied. Permits may be issued on the 
basis that the requirements for variances as set 
forth in 40 CFR 51 . 166(p)(4), (p)(5) and (p)(7), or 
(p)(6) and (p)(7) have been satisfied. 

(o) A permit application subject to this Rule 
shall be processed in accordance with the 
procedures and requirements of 40 CFR 5 1 . 166(q). 
Within 30 days of receipt of the application, 
applicants will be notified if the application is 
complete as to initial information submitted. 
Notwithstanding this determination, the 90-day 
period provided for the Commission to act by G.S. 
143-215. 108(b) shall be considered to begin at the 
end of the jieriod allowed for public comment, at 
the end of any public hearing held on the 
application, or when the applicant supplies 
information requested by the Director in answer to 
comments received during the comment period or 
at any public hearing, whichever is later. The 
Director shall notify the Administrator of EPA of 
any application considered approved by expiration 
of the 90 days; this notification shall be made 
within 10 working days of the date of expiration. 
If no permit action has been taken when 70 days of 
the 90-day period have expired, the Commission 
shall relinquish its prevention of significant 
deterioration (PSD) authority to EPA for that 
permit. The Commission shall notiiy by letter the 
EPA Regional Administrator and the applicant 
when 70 days have expired. EPA will then have 
responsibility for satisfying unmet PSD 
requirements, including permit issuance with 
appropriate conditions. The permit applicant must 
secure from the Commission, a permit revised (if 
necessary) to contain conditions at least as 
stringent as those in the EPA permit, before 
beginning construction. Commencement of 
construction before full PSD approval is obtained 
constitutes a violation of this Rule. 

(p) Approval of an application with regard to the 
requirements of this Rule shall not relieve the 
owner or operator of the responsibility to comply 
fully with applicable provisions of other rules of 
this Chapter and any other requirements under 



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812 



PROPOSED RULES 



local, state, or federal law. 

(q) When a source or modification subject to 
this Rule may affect the visibility of a Class I area 
named in Paragraph (c) of this Rule, the following 
procedures shall apply: 

(1) The Director shall provide written 
notification to all affected Federal Land 
Managers within 30 days of receiving 
the permit application or within 30 days 
of receiving advance notification of an 
application. The notification shall be at 
least 30 days prior to the publication of 
notice for public comment on the 
application. The notification shall 
include a copy of all information 
relevant to the permit application 
including an analysis provided by the 
source of the potential impact of the 
proposed source on visibility. 

(2) The Director shall consider any analysis 
concerning visibility impairment 
performed by the Federal Land 
Manager if the analysis is received 
within 30 days of notification. If the 
Director finds that the analysis of the 
Federal Land Manager fails to 
demonstrate to his satisfaction that an 
adverse impact on visibility will result 
in the Class I area, the Director shall 
provide in the notice of public hearing 
on the application, an explanation of his 
decision or notice as to where the 
explanation can be obtained. 

(3) The Director may require monitoring of 
visibility in or around any Class I area 
by the proposed new source or 
modification when the visibility impact 
analysis indicates possible visibility 
impairment. 

(r) Revisions of the North Carolina State 
Implementation Plan for Air Quality shall comply 
with the requirements contained in 40 CFR 
51.166(a)(2). 

(s) The version of the Code of Federal 
Regulations incorporated in this Rule is that as of 
January 1. — 19 8 9. June 3^ 1993. and does not 
include any subsequent amendments or editions to 
the referenced material. 

Statutory Authority G.S. 143-215. 3(a)(1); 
143-215. 107(a)(3); 1 43-21 5. 107(a)(5); 
143-215. 107(a)(7); 143-215. 108(b); 150B-21. 6. 

SECTION .0900 - VOLATILE 
ORGANIC COMPOUNDS 



.0955 THREAD BONDING 
MANUFACTURING 

(a) For the purpose of this Rule, the following 
definitions a pply: 

(1) "Capture hoods" means any device 
designed to remove emissions from the 
solution bath tray areas during the 
manufacturing process. 

(2) "Curing" means exposing coated 
threads to high temperatures in an oven 
until the nylon solution mixture hardens 
(vaporizing the solvents) and bonds to 
the threads. 

(3) "Day tanks" means holding tanks that 
contain nylon solution mixture ready 
for use. 

(4) "Drying ovens" means any apparatus 
through which the coated threads are 
conveyed while curing. 

(5) "Enclose" means to construct an area 
within the plant that has a separate 
ventilation system and is maintained at 
a slightly negative pressure. 

(6) "Fugitive emissions" means emissions 
that cannot ^ collected and routed to a 
control system. 

(7) "Nylon thread coating process" means 
a process in which threads are coated 
with a nylon solution and oven cured. 

(8) "Permanent label " means a label that 
cannot be easily removed or defaced. 

(9) "Polyester solution mixture" means a 
mixture of polyester and solvents which 
is used for thread coating. 

(10) "Storing means reserving material 
supply for future use. 

(11) "Thread bonding manufacturing" means 
coating single or multi-strand threads 
with plastic (nylon or polyester solution 
mixture) to impart properties such as 
additional strength and durability, water 
resistance, and moth repellency. 

(12) "Transporting" means moving material 
supply from one place to another. 

(b) This Rule applies in accordance with Rule 
.0902rb) of this Section to any thread bonding 
manufacturing facility with total uncontrolled 
exhaust emissions from nylon thread coating 
process collection hoods and drying ovens gi 
volatile organic compounds (VOC) equal to or 
greater than 100 tons per year. 

(c) Annual VOC emissions from each nylon 
thread coating process shall be determined b^ 
multiplying the hourly amount of VOC consumed 
by the total scheduled operating hours per year. 



813 



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PROPOSED RULES 



(d) Emissions from each nylon thread coating 
process subject to this Rule shall be reduced: 

(1) by at least 95 percent by weight, or 

(2) by installing a thermal incinerator with 
a temperature of at least 1600° F and a 
residence time of at least 0.75 seconds. 

(e) The owner or operator of any thread bonding 
manufacturing facility shall: 

(1) enclose the nylon thread coating process 
area of the plant to prevent fugitive 
emissions from entering other plant 
areas; 

(2) store all VOC containing materials in 
covered tanks or containers: 

(3) ensure that equipment used for 
transporting or storing VOC containing 
material does not leak and that all lids 
and seals used by such equipment are 
kept in the closed position at all times 
except when in actual use; 

(4) not cause or allow VOC conteining 
material to be splashed, spilled, or 
discarded in sewers; 

(5) hold only enough nylon solution 
mixture in the day tanks to 
accommodate daily process times 
measured in hours; and 

(6) place permanent and conspicuous labels 
on all equipment affected by 
Subparagraphs (4) through £5) of this 
Paragraph summarizing handling 
procedures described in Subparagraphs 
(4) through (5) of this Paragraph for 
VOC contaminated materials at the 
nylon thread coating process. 

(f) The owner or operator of a thread bonding 
manufacturing facility shall notify the director 
within 30 days after the calculated annual 
emissions of VOC from nylon thread coating 
processes equal or exceed 100 tons per year. The 
owner or operator shall submit within six months 
after such calculation a permit a pplication 
including a schedule to bring the facility into 
compliance with this Rule. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a). 

.0956 GLASS CHRISTMAS ORNAMENT 
MANUFACTURING 

(a) For the purpose of this Rule, the following 
definitions a pply: 

(1) "Coating" means the application of a 
layer of material, either by dipping or 
spraying, in a relatively unbroken film 



onto glass Christmas ornaments. 

(2) "Curing ovens" means any a pparatus 
through which the coated glass 
Christmas ornaments are conveyed 
while drying. 

(3) "Glass Christmas ornament" means any 
glass ornament that is coated with 
decorative exterior and is traditionally 
hung on Christmas trees. 

(4) "Glass Christmas ornament 
manufacturing facility" means a facility 
that coats glass Christmas ornaments 
through the process of interior coating 
or exterior coating that uses either 
mechanical or hand-dipping methods, 
drying (curing), cutting, and packaging 
operations. 

(5) "Mechanical coating lines" means 
equipment that facilitates mechanized 
di pping or spraying of a coating onto 
glass Christmas ornaments in which the 
neck of each ornament is held 
mechanically during the coating 
operation. 

(6) "Solvent-borne coating" means a 
coating that uses organic solvents as an 
ingredient. 

(h) This Rule applies in accordance with Rule 
.0902(1)) of this Section to any curing ovens 
servicing the mechanical coating lines in the 
coating of glass Christmas ornaments at glass 
Christmas tree ornament manufacturing facilities 
with potential volatile organic compound (VOC) 
emissions of 100 tons per year or more. 

(c) This Rule does not a pply to glass Christmas 
ornament manufacturing facilities that do not use 
solvent-borne coating materials. 

(d) Emissions of VOC from each curing oven 
shall be reduced by at least 95 percent by weight. 

(e) Emissions of VOC from all curing ovens 
servicing the mechanical coating lines at the glass 
Christmas ornament manufacturing facility shall 
not exceed 33.9 pounds of VOC per hour. 

(f) If the owner or operator of a facility subject 
to this Rule chooses to use low VOC content, 
solvent-borne coatings to reduce emissions, the 
emission reduction from the use of these coatings 
shall be equivalent to that achieved using add-on 
controls. 

(g) The owner or operator of a Christmas tree 
ornament manufacturing facility shall notify the 
director within 30 days after the calculated annual 
emissions of VOC from the facility equal or 
exceed 100 tons per year. The owner or operator 
shall submit within six months after such 



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814 



PROPOSED RULES 



calculation a permit application including a 
schedule to bring the facility into compliance with 
this Rule. 

Statutory Authority G.S. 143-21 5. 3(a)(1); 143- 
215. 107(a). 

.0957 COMMERCIAL BAKERIES 

(a) For the purpose of this Rule, the following 
definitions apply: 

(1) "Baking" means the process by which 
dough is changed to bread in an oven 
as a result of temperature and time. 

(2) "Commercial Bakery" means an 
establishment where bread and baked 
goods are produced. 

(3) "Oven" means a heated chamber or 
compartment where the baking process 
takes place. 

(h) This Rule applies in accordance with Rule 
■Q9Q2(b) of this Section to any baking oven at a 
commercial bakery with potential volatile organic 
compound (VOC) emissions greater than 175 
pounds of VOC per day. Daily volatile organic 
compound emissions shall be determined according 
to the calculation procedures in Paragraph (d) of 
this Rule. 

(c) Emissions of VOC from each baking oven 
subject to this Rule shall be reduced by at least 90 
percent by weight. 

(d) Daily volatile organic compound emissions 
from each commercial baking oven shall be 
determined according to the following: 0.00314 
times the daily production rate (pounds of bread 
per day). 

(e) The owner or operator of a commercial 
bakery shall notify the Director within 30 days 
after the calculated emissions of VOC from a 
baking oven equal or exceed 175 pounds per day. 
TTie owner or operator shall submit within six 
months after such calculation a permit application 
including a schedule to bring the facility into 
compliance with this Rule. 

Statutory Authority G.S 143-21 5. 3(a)(1); 143- 
215.107(a). 

SUBCHAPTER 2Q - AIR QUALITY 
PERMir PROCEDURES 

SECTION .0300 - CONSTRUCTION 
AISHD OPERATION PERMTTS 

.0312 APPLICATION PROCESSING 
SCHEDULE 



(a) The Division shall adhere to the following 
schedule for processing applications for permits, 
permit modifications, and permit renewals: 

(1) for permit a pplications, except for 
prevention of significant deterioration 
under 15A NCAC 2D .0530. new 
source review under 15A NCAC 2D 
■ 0531 . case-by-case maximum 
achievable control technology under 
15A NCAC 2D .1109. or a request for 
synthetic minor facility status before 
one year after EPA a pproves Section 
.0500 of this Subchapter, which shall 
take at least six months: 

(A) The Division shall send written 
acknowledgement of receipt of the 
permit application to the applicant 
within 10 days of receipt of the 
application. 

(B) The Division shall review all permit 
applications within 45 days of receipt 
of the application to determine 
whether the a pplication is complete or 
incomplete for processing purposes. 
The Division shall notify the applicant 
by letter: 

£i} stating that the a pplication as 

submitted is complete and 

specifying the completeness date. 

iii} stating that the application is 

incomplete, requesting additional 

infiprmation and specifying the 

deadline date by which the 

requested information is to be 

received by the Division, or 

(iii) stating that the application is 

incomplete and requesting that the 

a pplicant rewrite and resubmit the 

a pplication. 

If the Division does not notify the 

a pplicant by letter dated within 45 

days of receipt of the application that 

the application is incomplete, the 

application shall be deemed complete. 

A completeness determination shall 

not prevent the Director from 

requesting additional information at a 

later date when such information is 

considered necessary to properly 

evaluate the source, its air pollution 

abatement equipment, or the facility. 

If the applicant has not provided the 

requested additional information by 

the deadline specified in the letter 

requesting additional information, the 



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PROPOSED RULES 



Director may return the a pplication to 
the a pplicant as incomplete. TTie 
a pplicant may request a time 
extension for submittal of the 
requested additional information. 

(C) If the draft permit is not required to 
go to public notice or to public 
hearing, the Director shall issue or 
deny the permit within 90 days of 
receipt of a complete application or 
10 days after receipt of requested 
additional information, whichever is 
later. 

(D) If the draft permit is required to go to 
public notice with a request for 
o pportunity for public hearing under 
Rule .0306(a) of this Section, the 
Director shall: 

£i} send the draft permit to public 
notice within 90 days after receipt 
of a complete a pplication; and 

(ii) take final action on the permit 
within 30 days after the close of 
the public comment period. 

(E) If the draft permit is required to go to 
public hearing as a result of a request 
for public hearing under Rule 
.0307(e) of this Section, the Director 
shall: 

(i) send the draft permit to public 
hearing within 45 days after 
approving the request for the 
public hearing; and 

(ii) take final action on the permit 
within 30 days after the close of 
the public hearing. 

(2) for permit applications for prevention 
of significant deterioration under 15A 
NCAC 2D .0530 or new source review 
under 15A NCAC 2D .0531. the 
processing schedules are set out in 
those Rules. 

(3) for case-by-case maximum achievable 
control technology under 15A NCAC 
2D .1109: 

(A) The Division shall send written 
acknowledgement of receipt of the 
permit a pplication to the a pplicant 
within 10 days of receipt of the 
application. 

(B) The Division shall review all permit 
a pplications within 45 days of receipt 
of the application to determine 
whether the a pplication is complete or 
incomplete for processing purposes. 



The Division shall notify the applicant 

by letter: 

(i) stating that the a pplication as 

submitted is complete and 

specifying the completeness date. 

(ii) stating that the application is 

incomplete, requesting additional 

information and specifying the 

deadline date by which the 

requested information is to be 

received by the Division, or 

(iii) stating that the a pplication is 

incomplete and that the a pplicant 

rewrite and resubmit the 

a pplication. 

If the Division does not notify the 

applicant by letter dated within 45 

days of receipt of the a pplication that 

the a pplication is incomplete, the 

application shall be deemed complete. 

A completeness determination shall 

not prevent the Director from 

requesting additional information at a 

later date when such information is 

considered necessary to properly 

evaluate the source, its air pollution 

abatement equipment, or the facility. 

If the a pplicant has not provided the 

requested additional information by 

the deadline specified in the letter 

requesting additional information, the 

Director may return the application to 

the a pplicant as incomplete. The 

applicant may request a time 

extension for submittal of the 

requested additional information. 

(C) The Director shall: 

(i) send the draft permit to public 
notice within 120 days after 
receipt of a complete a pplication 
or JO days after receipt of 
requested additional information, 
whichever is later; and 

(ii) take final action on the permit 
within 30 days after the close of 
the public comment period. 

(D) If the draft permit is required to go to 
public hearing as a result of a request 
for public hearing under Rule 
■0307(e) of this Section, the Director 
shall: 

{i} send the draft permit to public 
hearing within 45 days after 
a pproving the request for the 
public hearing; and 



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816 



PROPOSED RULES 



(ii) take final action on the permit 

within 30 days after the close of 

the public hearing. 

(h) The days that fall between the sending out a 

letter requesting additional information and 

receiving that additional information shall not be 

counted in the schedules under Paragraph (a) of 

this Rule. 

(c) The Director may return at any time 
applications containing insufficient information to 
complete the review. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.108. 

SECTION .0500 - TITLE 
V PROCEDURE 

.0507 APPLICATION 

(a) Except for: 

(1) minor fjermit modifications covered 
under Rule .0515 of this Section, 

(2) significant modifications covered under 
Rule .0516(c) of this Section, or 

(3) permit applications submitted under 
Rule .0506 of this Section, 

the owner or operator of a source shall have one 
year from the date of begirming of operation of the 
source to file a complete application for a permit 
or permit revision. However, the owner or 
operator of the source shall not begin construction 
or operation until he has obtained a construction 
and operation permit pursuant to Rule .0501(c) or 
(d) and Rule .0504 of this Section. 

(b) The application shall include all the 
information described in 40 CFR 70.5(c), 
including a list of insignificant activities exempted 
because of size or production rate under Rule 
.0102(b)(2) of this Subchapter, but not including 
insignificant activities exempted because of 
category under Rule .0102(b)(1) of this 
Subchapter. The application form shall be 
certified by a responsible official for truth, 
accuracy, and completeness. In the application 
submitted pursuant to this Rule, the applicant may 
attach copies of applications submitted pursuant to 
Section .0400 of this Subchapter or 15A NCAC 
2D .0530 or .0531, provided the information in 
those applications contains information required in 
this Section and is current, valid, and complete. 

(c) Application for a permit, permit revision, or 
permit renewal shall be made in accordance with 
Rule .0104 of this Subchapter on official forms of 
the Division and shall include plans and 
specifications giving all necessary data and 



information as required by the application form. 
Whenever the information provided on these forms 
does not describe the source or its air pollution 
abatement equipment to the extent necessary to 
evaluate the application, the Director may request 
that the applicant provide any other information 
that the Director considers necessary to evaluate 
the source and its air pollution abatement 
equipment. 

(d) Along with filing a complete application 
form, the applicant shall also file the following: 

(1) for a new facility or an expansion of 
existing facility, a consistency 
determination in accordance with G.S. 
143-215. 108(f) that: 

(A) bears the date of receipt entered by 
the clerk of the local government, or 

(B) consists of a letter from the local 
government indicating that all zoning 
or subdivision ordinances are met by 
the facility; 

(2) for a new facility or modification of an 
existing facility, a written description of 
current and projected plans to reduce 
the emissions of air contaminants by 
source reduction and recycling in 
accordance with G.S. 143-215. 108(g); 
the description shall include: 

(A) for an existing facility, a summary of 
activities related to source reduction 
and recycling and a quantification of 
air emissions reduced and material 
recycled during the previous year and 
a summary of plans for further source 
reduction and recycling; or 

(B) for a new facility, a summary of 
activities related to and plans for 
source reduction and recycling; and 

(3) if required by the Director, information 
showing that: 

(A) The applicant is financially qualified 
to carry out the permitted activities, 
or 

(B) The applicant has substantially 
complied with the air quality and 
emissions standards applicable to any 
activity in which the applicant has 
previously been engaged, and has 
been in substantial compliance with 
federal and state environmental laws 
and rules. 

(e) The applicant shall submit copies of the 
application package as follows: 

(1) for sources subject to the requirements 
of 15 A NCAC 2D .0530, .0531, or 



817 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



PROPOSED RULES 



.1200, six copies plus one additional 
copy for each affected state that the 
Director has to notify; 
(2) for sources not subject to the 
requirements of 15A NCAC 2D .0530, 
.0531, or .1200, four copies plus one 
additional copy for each affected state 
that the Director has to notify. 
The Director may at any time during the 
application process request additional copies of the 
complete application package from the applicant. 

{f) — Th e Division ahall r e vi e w all applications 
within 60 days of r e c e ipt of th e application to 
dotormino whether th e application is complet e or 

inoompl e to and so notify th e applicant. ¥he 

notifioation shall be a lett e r: 

{i^ stating that th e application is d ee m e d 

compl e te; 

(3) stating that th e application is incompl e t e 

and r e qu e sting additional inffarmation; 
ef 

^ stating that th e application is incompl e te 

and that th e applicant needs to rowrito 
th e application and r e submit it. 
If the Division do e s not notify th e applicant by 
letter dated within — 60 — d^w — of r e c e ipt — of th e 
application that th e application is incompl e te, th e 

application — s hall — be — d ee m e d — compl e te. A 

oompl e tonoss det e rmination shall not pr e v e nt th e 
Dir e ctor from r e qu e sting additional information at 
a later date wh e n such information is consid e r e d 
n e c e ssary to prop e rly e valuat e th e sourc e or its air 
pollution abat e ment e quipm e nt. — A oomplctcn e sa 
d e t e rmination shall not b e neo e ssar)' for minor 
modifications under Rul e .051 4 of this S e ction. 

{f)£f) Any applicant who fails to submit any 
relevant facts or who has submitted incorrect 
information in a permit application shall, upon 
becoming aware of such failure or incorrect 
submittal, submit, as soon as possible, such 
supplementary facts or corrected information. In 
addition, an applicant shall provide additional 
information as necessary to address any 
requirements that become applicable to the source 
after the date he filed a complete application but 
prior to release of a draft permit. 

i^(e.) The applicant shall submit the same 
number of copies of additional information as 
required for the application package. 

tf)(h) The submittal of a complete permit 
application shall not affect the requirement that any 
fecility have a preconstruction permit under 15A 
NCAC 2D .0530, .0531, or .0532 or under 
Section .0400 of this Subchapter. 
{j)£i} The Director shall give priority to permit 



applications containing early reduction 
demonstrations under Section 112(j)(5) of the 
federal Clean Air Act. The Director shall take 
final action on such permit applications as soon as 
practicable after receipt of the complete permit 
application. 

^li) With the exceptions specified in Rule 
.0203 (i) of this Subchapter, a non-refundable 
permit application processing fee shall accompany 
each application. The permit application 

processing fees are defined in Section .0200 of this 
Subchapter. Each permit or renewal application is 
incomplete until the permit application processing 
fee is received. 

ffi(k) The applicant shall retain for the duration 
of the permit term one complete copy of the 
application package and any information submitted 
in support of the application package. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0518 FINAL ACTION 

(a) The Director may: 

(1) issue a permit, permit revision, or a 
renewal containing the conditions 
necessary to carry out the purposes of 
G.S. 143, Article 21B and the federal 
Clean Air Act; or 

(2) rescind a permit upon request by the 
permittee; or 

(3) deny a permit application when 
necessary to carry out the purposes of 
G.S. Chapter 143, Article 21 B and the 
federal Clean Air Act. 

(b) The Director may not issue a final permit or 
permit revision, except administrative permit 
amendments covered under Rule .0514 of this 
Section, until ERVs 45-day review period has 
expired or until EPA has notified the Director that 
ER\ will not object to issuance of the permit or 
permit revision, whichever occurs first. The 
Director shall issue the permit or permit revision 
within five days of receipt of notification from 
EPA that it will not object to issuance or of the 
expiration of EPA's 45-day review period, 
whichever occurs first. 

(c) If EPA objects to a proposed permit, the 
Director shall respond to EPA's objection within 
90 days after receipt of EPA's objection. The 
Director shall not issue a permit under this Section 
over EPA's objection. 

(d) If EPA does not object in writing to the 
issuance of a permit, any person may petition EPA 
to make such objections by following the 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



818 



PROPOSED RULES 



procedures and meeting the requirements under 40 
CFR 70.8(d). 

(e) No permit shall be issued, revised, or 
renewed under this Section unless all the 
procedures set out in this Section have been 
followed and all the requirements of this Section 
have been met. Default issuance of a permit, 
permit revision, or permit renewal by the Director 
is prohibited. 

(f) Final action shall b e tok e n within 1 8 months 
of a s ubmittal of a compl e t e d application, subj e ct 
to adjudication, exc e pt for application s s ubmitted 
und e r Rule .0506 or .0515 of this Section. 

{g)if) Thirty days after issuing a permit, 
including a permit issued pursuant to Rule .0509 
of this Section, that is not challenged by the 
applicant, the Director shall notice the issuance of 
the final permit. The notice shall be issued in a 
newspaper of general circulation in the area where 
the fecility is located. The notice shall include the 
name and address of the facility and permit 
number. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10): 143-215. 108. 

.0525 APPLICATION PROCESSING 
SCHEDULE 

(a) Except for permit a pplications submitted 
under Rule .0506 of this Subchapter, the Division 
shall adhere to the following schedule in 
processing applications for permits, significant 
permit modifications, and permit renewal : 

(1) The Division shall send written 
acknowledgement of receipt of the 
application to the applicant within 10 
days of receipt of the a pplication. 
The Division shall review all permit 
applications within 60 days of receipt of 
the application to determine whether the 
application is complete or incomplete. 
The Division shall notify the applicant 
by letter: 
stating that the application as 
submitted is complete and specifying 
the completeness date, 
stating that the application is 
incomplete. requesting additional 
information and specifying the 
deadline date by which the requested 
information is to be received by the 
Division, or 

stating that the application is 
incomplete and requesting that the 
a pplicant rewrite and resubmit the 



12) 



lA} 



im 



iC) 



application. 
If the Division does not notify the 
applicant by letter dated within 60 days 
of receipt of the a pplication that the 
application is incomplete. the 
a pplication shall be deemed complete. 
A completeness determination shall not 
prevent the Director from requesting 
additional information at a later date 
when such information is considered 
necessary to properly evaluate the 
source, its air pollution abatement 
equipment, or the facility. If the 
a pplicant has not provided the requested 
additional information by the deadline 
specified in the letter requesting 
additional information, the Director 
may return the a pplication to the 
a pplicant as incomplete. The applicant 
may request a time extension for 
submittal of the requested additional 
information. A completeness 

determination shall not be necessary for 
minor modifications under Rule .0514 
of this Section. 
(3) The Director shall send the public 
notice for public comment on the draft 
permit to affected states, to EPA, and 
to persons on the mailing list within 
270 days after receipt of a complete 
application or 10 days after receipt of 
requested additional information. 



{41 



15} 



whichever is later. 



lA] 

m 



£6} 



(Al 

m 



If a public hearing is requested and 
a pproved by the Director for a draft 
permit, it shall be held within 45 days 
of the Director's decision to hold a 
public hearing. 

The Director shall send the proposed 
permit to EPA: 
within 30 days after the close of the 
public comment period if there is no 
public hearing on the draft permit; or 
within 45 days after the close of the 
public hearing if there is a public 
hearing on the draft permit. 
If ER\ does not object to the pro|x>sed 
permit, the Director shall issue the 
permit within five days after: 
expiration of EPA 45 -day 
period: or 



review 



£7} 



receipt of notice from EPA that it will 

not object to issuance, 
whichever comes first. 
If EPA objects to the proposed permit. 



819 



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NORTH CAROLINA REGISTER 



September 1, 1994 



PROPOSED RULES 



M 



the Director shall respond to EPA's 
objection within 90 days after receipt of 
EPA's objections. 
The Director may return at any time 



applications containing insufficient information to 
complete the review. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(10); 143-215.108. 

SECTION ,0600 - TRANSPORTATION 
FACILITY PROCEDURES 

.0607 APPLICATION PROCESSING 
SCHEDULE 

(a) The Division shall adhere to the following 
schedule in processing applications for 
transportation source permits: 

(1) The Division shall send written 
acknowledgement of receipt of the 
permit application to the a pplicant 
within 10 days of receipt of the 



£21 



a pplication. 
The Division 



shall review all permit 



a pplications within 30 days of receipt of 
the application to determine whether the 
a pplication is complete or incomplete 
for processing purposes. The Division 
shall notify the applicant by letter: 

(A) stating that the application as 
submitted is complete and specifying 
the completeness date, 

(B) stating that the a pplication is incom- 
plete, requesting additional informa- 
tion and specifying the deadline date 
by which the requested information is 
to be received by the Division, or 

(C) stating that the a pplication is incom- 
plete and requesting that the applicant 
rewrite and resubmit the a pplication. 

If tlie Division does not notify the 
applicant by letter dated within 30 days 
of receipt of the a pplication that the 
application is incomplete, the a pplica- 
tion shall be deemed complete. A 
completeness determination shall not 
prevent the Director from requesting 



additional information 
when such 



at a later date 

nformation is considered 

necessary to properly evaluate the 
source, its air pollution abatement 
equipment, or the facility. If the appli- 
cant has not provided the requested 
additional information by the deadline 
specified in tlie letter requesting addi- 



£3} 



tional information, the Director may 
return the a pplication to tlie applicant as 
incomplete. The a pplicant may request 
a time extension for submittal of the 
requested additional information. 
The Director shall send the draft permit 
to public notice within 60 days after 
receipt of a complete application or 10 
days after receipt of requested addition- 
al information, whichever is later. 



£4} 



15} 



lA] 



IB} 



If the draft permit is not required to go 
to public hearing, the Director shall 
take final action on the permit within 
30 days after the close of the public 
comment period. 

If the draft permit is required to go to 
public hearing as a result of a request 
for public hearing under Rule .0604(e) 
of this Section, the Director shall: 
send the draft permit to public hearing 
within 45 days after approving the 
request for the public hearing, and 
take final action on tlie permit within 
30 days after the close of the public 
hearing. 

(b) The days that fall between the sending out a 
letter requesting additional information and receiv- 
ing that additional information shall not be counted 
in the schedules under Paragraph (a) of this Rule. 

(c) The Director may return at any time applica- 
tions containing insuflicient information to com- 
plete the review. 

Statutory Authority G.S 143-215. 3(a)(1); 143- 
215.108; 143-215.109. 

lyiotice is hereby given in accordance with G.S. 
150B-21.2 that the Marine Fisheries Commission 
intends to adopt rules cited as 15A NCAC 30 
.0301 - .0310. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearings will be conducted at 7:00 
p.m. on the following dates and locations: 

November 1, 1994 

NC AQUARIUM, 

Manteo, North Carolina 



NORTH CAROLINA REGISTER 



September 1, 1994 



820 



PROPOSED RULES 



November 2, 1994 

Pitt Community College, 

Highway US, 

Room 153, Fulford Building, 

Greenville, North Carolina 

November 7, 1994 

Jostyn Hall, 

Carteret Community College, 

3505 Arendell Street, 

Morehead City, North Carolina 

November 9, 1994 

Archdale Building, 

512 North Salisbury Street, 

Raleigh, North Carolina 

November 10, 1994 

University of North Carolina, 

Morton Hall, 

Randall Street, Lot G, 

Wilmington, North Carolina 



considering petitions, urformation to be considered 
in the petition, and how to settle votes that are 
tied. 

ISA NCAC 30 .0305 - EMERGENCY UCENSES; 
outlines criteria for issuance of 30 days emergency 
license. 

ISA NCAC 30 .0306 - HARDSHIP UCENSES; 
outlines criteria for issuance of a hardship license. 
ISA NCAC 30 .0307 - APPEALS PANEL FINAL 
DECISION; outlines procedures for issuance or 
denials of an approved emergency or hardship 
license. 

ISA NCAC 30 .0308 - OFHaAL RECORD; 
outlines what shall be the official record of the 
decision. 

ISA NCAC 30 .0309 - REASONS FOR REVOCA- 
TION; sets forth reasons for revoking emergency 
or hardship licenses. 

ISA NCAC 30 .0310 - TEMPORARY EMERGEN- 
CY VESSEL CRAB UCENSE; outlines procedures 
and reasons for issuance of emergency vessel crab 
licenses. 



ALL PUBUC HEARINGS WILL BEGIN AT 7:00 
p.m. 

BUSINESS SESSION 

The Marine Fisheries Commission will conduct a 
Business Session on December 2-3, 1994, at the 
MDS Center, 422 Raleigh Road, Smithfield, North 
Carolina beginning at 9:00 a.m. on the morning of 
December 2, 1994, to decide on these proposed 
rules. 

MXeason for Proposed Action: 
ISA NCAC 30 .0301 - APPEALS PANEL MEM- 
BERS AND CHAIR; allows for designees in place 
of Chair of Marine Fisheries Commission and 
Director of the Division of Marine Fisheries. 
Requires appointment of such designees within 
specified timeframe. Sets up procedures for 
attendance and requires quorum. 
ISA NCAC 30 .0302 - APPEALS PANEL MEET- 
INGS; schedules meetings for set dates. Outlines 
methods of presentations for petitioners. 
ISA NCAC 30 .0303 - APPEAL PETITION AND 
OTHER EVIDENCE; outlines criteria for contents 
in petitions, where to submit petitions, time limit 
for Division of Marine Fisheries to make recom- 
mendation and time limit for responding to such 
recommendation. 

ISA NCAC 30 .0304 - CONSIDERATION OF 
APPEAL PETITIONS; outlines timeframe for 



{..comment Procedures: Comments and statements, 
both written and oral, may be presented at the 
hearings. Written comments are encouraged and 
may be submitted to the Marine Fisheries Commis- 
sion, P. O. Box 769, Morehead City, NC 28557. 
These written and oral comments must be received 
no later than 10:00 a.m., December I, 1994. 
Oral presentation lengths may be limited depend- 
ing on the number of people that wish to speak at 
the public hearings. 

tLdUor's Note: These Rulse were filed as tempo- 
rary rules effective August 9, 1994 for a period of 
180 days or until the permanent rule becomes 
effective, whichever is sooner. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 30 - LICENSES, LEASES, 
AND FRANCHISES 

SECnON .0300 - LICENSE APPEAL 
PROCEDURES 

.0301 APPEALS PANEL MEMBERS AND 
CHAIR 

(a) If the Chairman of the Marine Fisheries 
Commission and the Director of the Division of 
Marine Fisheries do not intend to serve as mem- 
bers of the Appeals Panel, they may each name a 



821 



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NORTH CAROUNA REGISTER 



September 1, 1994 



PROPOSED RULES 



designee and an alternative designee. All 



designees and alternate designees shall be named 
within five days of the effective date of these 
Rules. 

(b) A designee who is unable to attend a 
meeting of the Appeals Panel shall notify his or 
her alternate at least 24 hours before the meeting. 

(c) The Chair of the Appeals Panel (Chair) shall 
be the Chairman of the Marine Fisheries 
Commission or any member of the A ppeals Panel 
designated as Chair by the Chairman of the Marine 
Fisheries Commission. 

(d) Requests to vary from the time limits of 
these Rules shall be determined on a case-by-case 
basis by the Chair. 

(e) The Appeals Panel shall not act upon a 
petition without a quorum. Two or more members 
of the Appeals Panel constitute a quorum. 

Statutory Authority G.S. 113-134; 113-153. 1; 1993 
(Regular Session 1994), c. 576, s. 3; 143B-289.4. 

.0302 APPEALS PANEL MEETINGS 

The Appeals Panel will hold regular meetings 
and quarterly meetings. 
(1) The A ppeals Panel shall conduct its 
regular meetings on the first and third 
Friday of each month unless the Marine 
Fisheries Commission is scheduled to 
meet on those dates. Regular meetings 
may be conducted by telephone 



conference call or in such other manner 



as the Chair decides, 
cancel meetings or 



12} 



£3} 



The Chair may 
call additional 
meetings as required. Persons who wish 
to attend a telephone conference call 
meeting must make written request with 
the Fisheries Director at least 10 working 
days prior to the meeting. 
The Appeals Panel shall conduct its 
quarterly meetings in conjunction with 
the quarterly meetings of the Marine 
Fisheries Commission. The first A ppeals 
Panel quarterly meeting shall be in 
conjunction with the next Marine 
Fisheries Commission meeting occurring 
at least 30 days after the effective date of 
these Rules. 

Oral presentations of arguments and 
evidence may be considered by the 



M 



Appeals Panel in rendering its decision in 

accordance with the following provisions: 

Answers, by persons other than legal 

counsel, to questions asked by Appeals 

Panel members during regular meetings 



and quarterly meetings shall be 
evidence; 

(b) Oral arguments will only be heard at 
the quarterly A ppeals Panel Meetings- 
Oral arguments shall not exceed 15 
minutes per party. The time provided 
for argument may be shortened if the 
Chair determines a shorter time is 
necessary to dispose of all other matters 
on the Panel's agenda; 

(c) Information presented in an oral 
argument is not evidence and shall not 
be included in the official record; and 

(d) The Division of Marine Fisheries shall 
make tape recordings of all oral 
arguments and presentations. 

Statutory Authority G. S. 113-134; 113-153. 1; 1993 
(Regular Session, 1994), c. 576, s. 3; 143B-289.4. 

.0303 APPEAL PETITION AND OTHER 
EVIDENCE 

(a) Under the Statutes authorizing issuance of 
special licenses in cases of emergencies or 
hardships, the most important criterion is the 
demonstration of emergency or hardship. The 
Appeals Panel must and will deny petitions which 
fail to demonstrate emergency or hardship 
consistent with the provisions of 15A NCAC 30 
.0305 and .0306. 

(b) The contents of an appeal petition are as 
follows: 

(1) Petitions that do not contain the 
following items will be returned to the 
petitioner without being processed: 

(A) A completed Appeals License 
Application; 

(B) A statement of the licensefs) being 
requested; 

(C) Where a vessel license is requested, a 
copy of the registration/ documentation 
information which identifies the 
vessel; 

(D) The petitioner's notarized signature; 
and 

(E) Where petitioners are not residents of 
North Carolina, certification from the 
fisheries agency of their resident state 
or jurisdiction showing, for the time 
period beginning July J^ 1991 to the 
present, all licenses held and any 
violations or convictions entered 
against them, or the lack thereof. 

(2) In addition, a petition shall include: 
(A) A statement of emergency or hardship 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



822 



PROPOSED RULES 



consistent with the standards in these 
Rules: 

suspensions and 
convictions of 



(B) A list of license 
revocations. and 
fisheries offenses in 



any state or 



jurisdiction during the past three 
years; 

(C) The reason(s) for failure to obtain the 
license(s) before July L, 1994; 

(D) A list of commercial fishing 
license(s). from any state or 
jurisdiction, held by the petitioner 
since July L, 1991. with identifying 
license number and issuing agency; 
and 

(E) Request for oral argument, if desired. 
(3) A petition may be accompanied by: 

(A) Evidence demonstrating the extent to 
which the petitioner relies on 
commercial fishing as a livelihood, 
such as tax records, sales records, trip 
tickets, and similar information; 

(B) Sworn affidavits by others verifying 
or supporting the information in the 
petition; 

(C) Exhibits and any other evidence to be 
offered in su pport of the a ppeal: and 

(D) A statement waiving the o pportunity 
to reply to the Division of Marine 
Fisheries recommendation. 

(c) Requests for oral arguments can only be 
made in the appeal petition- 
ed) Petitions, evidence, and supporting 
information can only be filed with the Division of 
Marine Fisheries at its offices in Morshead City or 
by mailing to Post Office Box 769. Morehead 
City. North Carolina 28557-0769. The petition 
will not be processed until the petitioner provides 
an original and four copies of the petition and 
supporting information. 

(e) The Division of Marine Fisheries will submit 
its recommendation and any other relevant 
information on each a ppeal to the A ppeals Panel 
within 10 working days of the receipt of a 
complete petition. On the same day the 
recommendation is sent to the Appeals Panel, the 
Division of Marine Fisheries shall serve a copy of 
its recommendation on the petitioner by depositing 
it in first class mail, hand delivery, or facsimile 
delivery. 

(f) Any reply to the Division of Marine 
Fisheries recommendation must be filed with the 
Division of Marine Fisheries within 10 days after 
the recommendation is served. The petition will 
not be processed until the petitioner provides an 



original and four copies of the reply and 
su pporting information. 

Statutory Authority G. S. 113-134; 113-153. 1; 1993 
(Regular Session 1994), c. 576, s. 3; 143B-289.4. 

.0304 CONSIDERATION OF APPEAL 
PETITIONS 

(a) Petitions received by the Fisheries Director 
15 working days before an A ppeals Panel meeting 
shall be determined no later than the next meeting 
if the petitioner waived the o pportunity to reply to 
the Division of Marine Fisheries recommendation 
in the petition. All other petitions shall be 
determined no later than the first Appeals Panel 
meeting occurring at least 10 days after the reply 
to the Division of Marine Fisheries 
recommendation is due to be filed. 

(b) When a petitioner requests oral argument, 
the petition shall be decided at the next quarterly 
A ppeals Panel meeting occurring at least 15 
working days after the petition is submitted. 
When a petitioner requests oral argument and m 
o pportunity to reply to the Division of Marine 
Fisheries recommendation, the petition shall be 
decided at the next quarterly A ppeals Panel 
meeting occurring at least 10 days after the reply 
is due to be filed. 

(c) In deciding appeal petitions, the A ppeals 
Panel will consider only information presented in 
accordance with these Rules and the status report 
by the Division of Marine Fisheries on the number 
of licenses issued in each category. 

(d) When the vote of the A ppeals Panel is tied, 
the petition shall be decided at ^ next meeting of 
the A ppeals Panel. Final decision on a petition 
may only be deferred once under this provision. 

Statutory Authority G. S. 113-134; 113-153. 1; 1993 
(Regular Session 1994), a 576, s. 3; 143B-289.4. 

.0305 EMERGENCY LICENSES 

A 30-day emergency license may be issued upon 
a showing that death, illness, or incapacity of a 
licensee would make jt impossible to continue the 
fishery operation unless an emergency license is 
issued to the petitioner. 
£1} Upon request by a petitioner, the Chair 
may suspend or shorten any procedures 
that would prevent the petition from 
being considered at the next A ppeals 
Panel meeting occurring not less than 
three days after the request is made. 
£2} An emergency license may not be 
renewed. 



823 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



PROPOSED RULES 



(3) An emergency license does not qualify 
the licensee to be issued a renewal 
license pursuant to Section 3 (c) of 
Chapter 576 of the 1993 (Regular Session 
1994) Session Laws. 

Statutory Authority G.S. 113-134; 113-153. 1; 1993 
(Regular Session 1994), c. 576, s. 3; I43B-289.4. 

.0306 HARDSfflP LICENSES 

The following criteria will be applied in 
approving or denying petitions based on hardship: 

(1) A petition will be denied unless it 
demonstrates at least one of the following 
circumstances: 

(a) For each license applied for, the 
petitioner has held that license or an 
equivalent commercial fishing license 
from another state or jurisdiction in two 
out of the past three years; and 
petitioner can demonstrate extenuating 
or extraordinary circumstances which 
prevented him or her from obtaining 
the North Carolina commercial fishing 
license for 1993-1994; 

(h) It can be demonstrated that petitioner 
did not obtain a 1993-1994 license 
because petitioner was on active 
military duty outside the state and that 
for two out of the three years previous 
to going on active military duty, 
petitioner held the license being applied 
for; 

(c) The petitioner has become 16 years of 
age since June 30, 1994; has a history 
of commercial fishing with their parent 
or guardian; and holds a Shellfish or 
Crab License; 

£d} An immediate member of the 
petitioner's family, who holds a current 
license, has died, is incapacitated, or is 
retiring from the commercial fishery; 
the petitioner needs the license to 
continue in that fishery operation; and 
the family member will surrender the 
license upon approval of the petition; or 

(e) The petitioner can demonstrate facts 
similar in hardship to the preceding 
situations. 

(2) Hardship and emergency licenses are 
issued solely to the petitioner based upon 
individual demonstration of need. A 
petition may be denied if the petitioner is 
unable to demonstrate a substantial effect 
on his livelihood in the event the license 



is denied. 

(3) The petitioner has a history of fishing 
law violations which would cause 
petitioner to be ineligible for a license in 
North Carolina or has a history of 
substantial noncompliance with federal or 
state laws, regulations, or rules for the 
protection of marine and estuarine 
resources in any stete or jurisdiction. 

(4) The holder of a current and valid 
hardship license on June 30 of the license 
year has the same eligibility to renew the 
license as persons not subject to the 
moratorium. 

Statutory Authority G.S. 113-134; 113-153.1; 1993 
(Regular Session 1994), c. 576, s. 3; 143B-289.4. 

.0307 APPEALS PANEL FINAL DECISION 

(a) An approval of a petition shall be a final 
decision that will be entered the same day it is 
a pproved by the A ppeals Panel. Licenses 
a pproved under these Rules shall be issued upon 
payment of the required fee, subject to any 
conditions imposed by the A ppeals Panel. 
Licenses issued under these Rules shall be 
specially denoted as emergency or hardship 
licenses and shall state the revocation provisions of 
these Rules and any other conditions imposed by 
the A ppeals Panel. 

(b) If a license is approved under 15A NCAC 
30 .0306(l)(d), it will only be issued upon the 
surrender of a license by the currently licensed 
family member. 

(c) Emergency licenses will only be issued by 
the Division of Marine Fisheries at jts Morehead 
City Office. 

(d) Denials of licenses shall be issued within 10 
working days of the decision by the A ppeals 
Panel. 

(e) The Appeals Panel shall issue a written order 
setting forth the basis for each a pproval or denial 
of a petition. For a hardship license petition, the 
order shall set forth the grounds for the decision as 
listed in ISA NCAC 30 .0306(n(a)-(e). When 
the basis for the approval is 15A NCAC 30 
.0306(l)(e), the order shall state the specific 
grounds demonstrating hardship. 

(f) An Appeals Panel denial becomes final either 
upon petitioner's filing for judicial review under 
G.S. 150B-43 et seq. or 30 days after the decision 
is issued, whichever occurs first. 

Statutory Authority G.S. 113-134; 113-153. 1; 1993 
(Regular Session 1994), c. 576, s. 3; 143B-289.4. 



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824 



PROPOSED RULES 



.0308 OFFIOAL RECORD 

The official record of an A pp>eals Panel decision 
for judicial review shall consist of the following: 

(1) The petition and any other items 
submitted by the petitioner; 

(2) The Division of Marine Fisheries 
recommendation, and any supporting 
information; 
The Division of Marine Fisheries status 



£3} 
£41 

£5} 



report on license totals; 

The petitioner's response, if any, to the 

Division of Marine Fisheries 

recommendation; and 

The Appeals Panel final decision. 



Statutory Authority G.S. 113-134; 113-153. 1; 1993 
(Regular Session 1994), c. 576. s. 3; 143B-289.4. 

.0309 REASONS FOR REVOCATION 

The Appeals Panel shall revoke an emergency or 
hardship license for either of the following 
reasons: 

(1) Material information submitted by the 
petitioner and relied upon by the Appeals 
Panel is determined to be false: or 

(2) Any attempt is made to transfer such 
license. 

Statutory Authority G.S 113-134; 113-153.1; 1993 
(Regular Session 1994). c. 576. s. 3; 143B-289.4. 

.0310 TEMPORARY EMERGENCY VESSEL 
CRAB LICENSES 

(a) Vessel crab licenses may be transferred by 
the Fisheries Director, for a period not to exceed 
30 days, upon a showing of death, illness, or 
incapacity'. 

(b) A temporary emergency vessel crab license 
does not qualify the licensee to be issued a renewal 
license pursuant to Section 3 £cj of Chapter 576 of 
the 1993 (Regular Session 1994) Session Laws. 

Statutory Authority G.S. 113-134; 113-153. 1; 1993 
(Regular Session 1994), c. 576, s. 3; 143B-289.4. 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coastal Management 
intends to amend rules cited as 15A NCAC 7H 
.0104, .0309; 7 J .0403 and .0404. 

1 he proposed effective date of this action is 



February 1, 1995. 

1 he public hearing will be conducted at 4:00 
p.m. on September 22, 1994 at the Coast Line 
Convention Center, 501 Nutt Street, Wilmington, 
NC 

M\.eason for Proposed Action: 
ISA NCAC 7H .0104 and .0309 - The current 
rules limit the ability of land owners to reconfigure 
the proposed development on lots that have been 
"grandfathered" from subsequent rule changes. 
ISA NCAC 7 J .0403 and .0404 - The current 
rules limit the eligibility of a CAMA permit appli- 
cant to receive a time extension beyond the three- 
year term of the permit. 

K^omment Procedures : All persons interested in 
this matter are invited to attend the public hearing. 
The Coastal Resources Commission will receive 
mailed written comments postmarked no later than 
October 3, 1994. Any person desiring to present 
lengthy comments is requested to submit a written 
statement for inclusion in the record of proceed- 
ings at the public hearing. Additional irformation 
concerning the hearing or the proposals may be 
obtained by contacting Dedra Blackwell, Div. of 
Coastal Management. PO Box 27687, Raleigh, NC 
27611-7687, (919) 733-2293. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES 

FOR AREAS OF ENVIRONMENTAL 

CONCERN 

SECTION .0100 - INTRODUCTION AND 
GENERAL COMMENTS 

.0104 DEVELOPMENT INITIATED PRIOR 
TO EFFECTIVE DATE OF 
REVISIONS 

(a) The following Rules shall be used to deter- 
mine whether the revisions to guidelines for 
development in areas of environmental concern 
(hereinafter referred to as revisions), with an 
effective date of June 1, 1979, shall apply to a 
proposed development. 

(1) In the case of a development for which 
a CAMA f)ermit was required prior to 
June 1, 1979, the revisions shall not be 
applicable if a complete and sufficient 
application for a CAMA permit was 



82S 



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PROPOSED RULES 



filed and accepted before June 1, 1979. 
However if the application should lapse 
or be denied, thereby requiring a new 
application after June 1, 1979, or if the 
application is modified or renewed after 
June 1, 1979, the revisions shall be 
made applicable. 

(2) In the case of a development for which 
no CAMA permit was required prior to 
July 15, 1979, the revisions shall not be 
applicable if all legally required permits 
have been applied for and accepted in 
accordance with the applicable rules of 
the agency responsible for the permit. 
However, if the application should 
lapse or be denied, thereby requiring a 
new application after July 15, 1979, or 
if the application is modified or re- 
newed after July 15, 1979, the revisions 
shall be applicable. 

(3) In those cases where a CAMA major 
permit was issued before June 1, 1979, 
for a major development which includ- 
ed platted lots, the new standards shall 
apply to such platted lots only to the 
maximum extent possible without effec- 
tively prohibiting the intended use of 
those lots. In order for this Rule to 
apply, the following conditions must be 
met: 

(A) the lot on which the proposed devel- 
opment is to be located shall have 
been accurately shown on the major 
development permit application and 
the boundaries must not have been 
significantly altered. 

(B) the lot on which the proposed devel- 
opment is to be located shall have 
been suitable for the intended use 
according to the AEC guidelines in 
effect at the time the major permit 
was issued. 

(C) a minor development permit must be 
applied for and received according to 
the normal minor permit process 
before development can begin. 

(D) this Rule shall apply only to develop- 
ment for which a permit application is 
submitted prior to expiration of the 
major development permit issued 
before June 1, 1979. 

(4) In those cases where any necessary 
local approval was issued for a pro- 
posed subdivision development prior to 
July 15, 1979, the Division of Coastal 



Management advised the developer in 
writing where to locate the ocean set- 
back line for the proposed subdivision, 
and the proposed subdivision develop- 
ment was recorded in the county regis- 
try prior to July 15, 1979, with the 
ocean setback determined by the Divi- 
sion of Coastal Management, any new 
standards regarding oceanfront setbacks 
shall apply to the platted lots within the 
proposed subdivision only to the maxi- 
mum extent possible without effectively 
prohibiting the intended use of those 
lots. In order for this Rule to apply, 
the following conditions must be met: 

(A) the lot(s) on which the proposed 
development is to be located shall 
have been accurately shown on an 
approved local plat and the boundaries 
must not have been significantly 
altered; 

(B) the lot(s) on which the proposed 
development is to be located shall 
have been suitable for the intended 
use according to the AEC guidelines 
in effect at the time the plat was 
approved; and 

(C) a minor development permit(s) must 
be applied for and received according 
to the normal minor permit process 
before development can begin. 

(b) The oceanfront setback provisions specifical- 
ly applicable to large structures, as set forth by 
Rule .0306(a)(4) of this Subchapter, shall apply 
only to development applications received on or 
after November 1, 1983. Further, Rule 
.0306(a)(4) of this Subchapter shall only apply to 
the maximum extent possible without eflFectively 
prohibiting the intended use of the property in the 
following situations: 

(1) the completion of projects that had 
received valid CAMA permits prior to 
November 1, 1983, provided that per- 
mit renewals, modification and transfer 
requests for these projects made pursu- 
ant to 15A NCAC 7J .0404, .0405 and 
.0406 and 15A NCAC 7E .0105 shall 
be considered under the setback rules 
applicable at the time of original permit 
issuance, and no renewals or extensions 
of pre-existing permits shall be made 
beyond the expiration period unless 
either there has been substantial prog- 
ress on construction or no material 
change in the physical conditions at the 



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826 



PROPOSED RULES 



project site (as is provided by 15A 
NCAC 7J .0403); and 
(2) the completion of projects that were 
outside of CAMA permit jurisdiction 
prior to November 1, 1983, provided 
that all other required state and local 
permits had been applied for in 
accordance with the rules of the 
agencies responsible for such permits 
and that the developer has materially 
changed his or her position in good 
faith reliance on such development 
approvals. In all instances, such 
development must be consistent with all 
other provisions of this Subchapter. 

(c) In the case of subdivisions or projects which 
have received either all required final or 
preliminary local approvals or a CAMA major 
development permit prior to May 27, 1988, and 
have therein met all applicable CAMA setback 
requirements as of May 27, 1988, the updated 
oceanfront erosion rates approved by the 
Commission on July 29, 1988, and effective on 
November 1, 1988, shall only apply to the 
maximum extent feasible. For these previously 
approved lots and projects, the erosion rate 
existing as of May 27, 1988, shall be applied in 
determining minimum oceanfront setbacks for 
purposes of subsequent approved construction or 
development prior to the next erosion rate update. 

(d) Reconfiguration of lots and projects that 
have a grandfather status under Paragraphs (b) and 
(c) of this Rule will be allowed provided that the 
following conditions are met: 

(1) Development is setback from the first 
line of stable natural vegetation a 
distance no less than that required by 
the a pplicable exceptions, and 

(2) Reconfiguration will not result in an 
increase in the number of buildable lots 
within the Ocean Hazard AEC or have 
other adverse environmental 
consequences. 

Statutory Authority G.S. 113A-107; 113A-113; 
113A-124. 

SECTION .0300 - OCEAN HAZARD AREAS 

.0309 USE CTA>fDARDS FOR OCEAN 
HAZARD AREAS: EXCEPTIONS 

(a) The following types of development may be 
permitted seaward of the oceanfront setback 
requirements of Rule .0306(a) of the Subchapter if 
all other provisions of this Subchapter and other 



state and local regulations are met: 

(1) campgrounds that do not involve 
substantial permanent structures; 

(2) parking areas with clay, packed sand or 
similar sur&ces; 

(3) outdoor tennis courts; 

(4) elevated decks not exceeding a footprint 
of 500 square feet; 

(5) beach accessways consistent with Rule 
.0308(c) of this Subchapter; 

(6) unenclosed, uninhabitable gazebos with 
a footprint of 200 square feet or less; 

(7) uninhabitable, single-story storage sheds 
with a footprint of 200 square feet or 
less; 

(8) temporary amusement stands; and 

(9) swimming pools. 

In all cases, this development shall only be 
permitted if it is landward of the vegetation line; 
involves no significant alteration or removal of 
primary or frontal dunes or the dune vegetation; 
has overwalks to protect any existing dunes; is not 
essential to the continued existence or use of an 
associated principal development; is not required 
to satisfy minimum requirements of local zoning, 
subdivision or health regulations; and meets all 
other non-setback requirements of this Subchapter, 
(b) Where strict application of the oceanfront 
setback requirements of Rule .0306(a) of this 
Subchapter would preclude placement of 
permanent substantial structures on lots existing as 
of June I, 1979, single family residential 
structures may be permitted seaward of the 
applicable setback line in ocean erodible areas, but 
not inlet hazard areas, if each of the following 
conditions are met: 

(1) The development is set back from the 
ocean the maximum feasible distance 
possible on the existing lot and the 
development is designed to minimize 
encroachment into the setback area; 

(2) The development is at least 60 feet 
landward of the vegetation line; 

(3) The development is not located on or in 
front of a frontal dune, but is entirely 
behind the landward toe of the frontal 
dune; 

(4) The development incorporates each of 
the following design standards, which 
are in addition to those required by 
Rule .0308(d) of this Subchapter. 

(A) All pilings have a tip penetration that 
extends to at least four feet below 
mean sea level; 

(B) The footprint of the structure be no 



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PROPOSED RULES 



more than 1,000 square feet or 10 
percent of the lot size, whichever is 
greater. 
(5) All other provisions of this Subchapter 
and other state and local regulations are 
met. If the development is to be 
serviced by an on-site waste disposal 
system, a copy of a valid permit for 
such a system must be submitted as part 
of the CAMA permit application. 
(c) Reconfiguration of lots and projects that have 
a grandfather status under Paragraph (h) of this 
Rule will be allowed provided that the following 
conditions are met: 

(1) Development is setback from the first 

line of stable natural vegetation a 

distance no less than that required by 

the a pplicable exception; 

£21 Reconfiguration will not result in an 

increase in the number of buildable lots 

within the Ocean Hazard AEC or have 

other adverse environmental 

consequences; and 

(3) Development on lots qualifying for the 

exception in Paragraph (h) of this Rule 

must meet the requirements of 

Paragraphs (1) through (5) of that 

Paragraph. 

For the purposes of this Rule, an existing lot is a 

lot or tract of land which, as of June 1, 1979, is 

specifically described in a recorded plat and which 

cannot be enlarged by combining the lot or tract of 

land with a contiguous lot(s) or tract(s) of land 

under the same ownership. The footprint is defined 

as the greatest exterior dimensions of the structure, 

including covered stairways, when extended to 

ground level. 

Statutory Authority G.S. 1 13A-107(a); 
113A-107(b); 113A-113(h)(6)a.; 113A-113(b)(6)b; 
113A-113(h)(6)d.; 113A-124. 

SUBCHAPTER 7J - PROCEDURES FOR 

HANDLING MAJOR DEVELOPMENT 

PERMITS: VARIANCE REQUESTS: 

APPEALS FROM MINOR DEVELOPMENT 

PERMIT DECISIONS: AND 

DECLARATORY RULINGS 

SECTION .0400 - FINAL APPROVAL 
AND ENFORCEMENT 

.0403 DEVELOPMENT PERIOD/ 

COMMENCEMENT/CONTINUATION 

(a) All devolopmont initiated pursuant to a 



CAMA and/or dredg e and fill p e rmit shall bo 
oomplotod by — D e o e mb e r — M — of the third y e ar 
following — tbe — yeaf — ef — p> e rmit — ioouanoo. New 
CAMA and dredge and fill permits shall expire on 
December 31 of the third year following the year 
of permit issuance. 
{b) — Comm e nc e m e nt of D e v e lopm e nt in Oo e an 

Hazard AEC. No work shall b e gin until th e 

oo e anfront s e tback r e quir e ment can be establish e d. 
Wh e n th e poosesBor of an approved p e rmit or a 
ruling of e xc e ption is r e ady to b e gin oonstruotion, 
h e shall arrang e a m ee ting with th e appropriat e 
Local Permit Offioor or Fi e ld Consultant at th e site 
to d e t e rmin e the oo e anfront s e tback. — This ootbaok 
d e t e rmination shall r e plac e the one done at the 
time th e f> e rmit wm proc e ss e d and approv e d and 
oonstruotion must b e gin within a p> e riod of 60 day s 
from th e dat e of that meeting. — In the ooso of a 
major shor e lin e chang e within that p e riod a n e w 
s e tback — d e t e rmination — wiH — be — required — before 

oonstruotion begins. UfHjn oompl e tion of th e 

m e asur e m e nt, th e Local P e rmit Offio e r or Fi e ld 
Consultant will issu e a written statem e nt to the 
p e rmitt ee c e rtifying th e sam e . 

(b) Development After Permit Expiration Illegal. 
Any development done shall be considered 
unpermitted and shall constitute a violation of G.S. 
113A-118 or G^ 113-229. Any development to 
be done after permit expiration shall require either 
a new permit, or. renewal of the original permit 
according to 15A NCAC 7J .0404 with the 
exception of Paragraph (e) of this Rule. 

{e) — Work don e Aft e r Expiration Illegal. — Asy 
work don e pursuant to an e xpir e d p e rmit shall b e 
consid e r e d unp e rmitt e d work and s hall constitut e 
a — violation — ef — GrS: — 113A 11 8 — and/or — GtSt 
113 229. 

(c) Commencement of Development in Ocean 
Hazard AEC. No development shall begin until 
the oceanfront setback requirement can be 
established. When the possessor of a permit or a 
ruling of exception is ready to begin construction. 
he shall arrange a meeting with the appropriate 
permitting authority at the site to determine the 
oceanfront setback. This setback determination 
shall replace the one done at the time the permit 
was processed and a pproved and construction must 
begin within a period of 60 days from the date of 
that meeting. In the case of a major shoreline 
change within that period a new setback 
determination will be required before construction 
begins. Upon completion of the measurement, the 
permitting authority will issue a written statement 
to the permittee certifying the same. 

(d) Continuation of Development in the Ocean 



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828 



PROPOSED RULES 



Hazard AEC . Once work development has begun 
under proper authorization, development in the 
Ocean Hazard AEC may continue beyond the 
authorized development {jeriod if, in the opinion of 
the Lx)oal P e rmit Offioor or Fi e ld Conoultant as 
appropriat e , permittin g authority, substantial 
progress has been made and is continuing 
according to customary and usual building 
standards and schedules. In most cases, substantial 
progress begins with the placement of foundation 
pilings. 

(e) — P e rmit Expiration. — Whore no d e v e lopm e nt 
ifi — initiat e d — during th e authoriz e d d e velopm e nt 
p)eriod, th e p e rmit s hall expir e at th e oonolusion of 
that p> e riod. — Any Bube e quont developm e nt activity 
shall require a n e w p e rmit. 

(e) Any permit that has been suspended pursuant 
to G.S. 1 13A- 121.1 as a result of a contested case 
petition or by order of superior court for a period 
longer than six months shall be extended at the 
applicant's written request for a period equivalent 
to the period of permit suspension, but not to 
exceed the development period authorized under 
Paragraph (a) of this Rule. 

(f) An a pplicant may voluntarily suspend 
development under an active permit that is the 
subject of judicial review by filing a written notice 
with the Department once the review has started. 
An applicant shall obtain an extension of said 
permit if the permitting authority finds: 

(1) That the a pplicant notified the 
permitting authority in writing of the 
voluntary suspension; 

(2) The period during which the permit had 
been subject to judicial review is 
greater than six months; 

(3) The applicant filed a written request for 
an extension of the development period 
once the judicial review had been 
completed; and 

(4) The applicant undertook no 
development after filing the notice of 
suspension. 

The period of permit extension shall be equivalent 
to the length of the judicial review proceeding, but 
not to exceed the development period authorized 
under Paragraph (a) of this Rule. 

Statutory Authority G.S. 113A-118. 

.0404 DEVELOPMENT PERIOD 
EXTENSION 

(a) Th e Departm e nt, in th e oos e of a major 
d e velopment and/or dr e dg e and fill p e rmit, or th e 
looal — p e rmit officer, — in th e oos e of a minor 



d e v e lopm e nt permit, may extend th e authorized 
d e v e lopm e nt {p e riod for a p e riod not to oxoood one 
y e ar for initial — d e v e lopm e nt or ten y e aro for 
moint e nano e and r e pair s upon r e c e ipt of a oignod 
and dat e d r e qu e st from th e applicant oontaining the 
following: Where no development has been 
initiated during the development period, the 
permitting authority shall extend the authorized 
development period for no more than two years 
upon receipt of a signed and dated request from 
the applicant containing the following: 

(1) a statement of the intention of the 
applicant to complete the work within a 
reasonable time; 

(2) a statement of the reasons why the 
project will not be completed before the 
expiration of the original current 
permit; asd 

(3) a statement that there has been no 
change of plans since the issuance of 
the original permit, permit other than 
changes that would have the effect of 
reducing the scope of the project, or. 
previously approved permit 
modifications; 

(4) notice of an^ change in ownership of 
the property to be developed and a 
request for transfer of the permit if 
a ppropriate; and 

(5) a statement that the project is in 
compliance with all conditions of the 
current permit- 
Where substantial development, either within or 
outside the AEC. has begun and is continuing on 
a permitted project, the permitting authority shall 
grant as many two year extensions as necessary to 
complete the initial development. Renewals for 
maintenance and repairs of previously approved 
projects may be granted for periods not to exceed 
10 years. 

(b) When an extension request has not met the 
criteria of Paragraph (a) of this Rule, the Tbe 
Department may circulate major d e v e lopm e nt and 
dr e dg e and fill ext e nsion requ e sts the request to 
the commenting state agencies along with a copy 
of the original permit application. Commenting 
agencies will be given three weeks in which to 
comment on the extension request. Upon the 
expiration of the commenting period the 
Department will notify the applicant promptly of 
its actions on the extension request. An e xtension 
r e qu es t may b e d e ni e d upon making finding s as 

r e quir e d — m — Gr* 113A 120 — and/or — GtSt 

113 229( e ). — Changes in oiroumstonoes and/or in 
d e v e lopm e nt standards will b e oonoid e r e d by th e 



829 



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PROPOSED RULES 



Dopartmont in making a deoioion on an e xt e nsion 
request. 

(c) A — minor — development Notwithstanding 
Paragraphs (a) and fb) of this Rule, an extension 
request may be denied on making findings as 
required in either G.S. 113A-120 or OS^ 113- 
229(e) . Changes in circumstances and/ or or in 
development standards will be considered and 
applied to the maximum extent practical by the 
local permit offic e r permitting authority in making 
a decision on an extension request. 

(d) The applicant for a major development 
extension request must submit, with the request, a 
check or money order payable to the Department 
in the sum of fifty dollars ($50.00). 

(e) Modifications to extended permits may be 
considered pursuant to 15A NCAC 7J .0405. 



Statutory Authority G. S. 
113A-1 24(c)(5). 



113A-119: 



I\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rules cited 
as 15A NCAC lOB .0106; lOF .0310 - .0311, 
.0323. .0365. 

Ihe proposed effective date of this action is 
December 1, 1994. 

Ihe public hearing will be conducted at 10:00 
a.m. on September 19, 1994 at the Archdale 
Building, Room 332, 3rd Floor, 512 N. Salisbury 
St., Raleigh. NC 27604-1 1 88. 

Keason for Proposed Action: 

ISA NCAC lOB .0106 - To allow deer taken 

during depredation to be donated to charitable 

organizations. 

ISA NCAC lOF .0310 - To establish a restricted 

swimming area on a designated body of water. 

ISA NCAC 10F.031I, .0323, .036S - To establish 

a restricted speed zone on a designated body of 

water. 

Comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
September 2, 1994 to October 3, 1994. Such 



written comments must be delivered or mailed to 
the N. C. Wildlife Resources Commission, 512 N. 
Salisbury Street, Raleigh. NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND 
TRAPPING 

SECTION .0100 - GENERAL 
REGULATIONS 

,0106 WILDLIFE TAKEN FOR 
DEPREDATIONS OR 
ACCIDENTALLY 

(a) Depredation Permit 

(1) Endangered or Threatened Species. No 
permit shall be issued to take any en- 
dangered or threatened species of wild- 
life listed under 15A NCAC 101 by 
reason of depredations to property. An 
individual may take an endangered or 
threatened species in immediate defense 
of his own life or of the lives of others 
without a permit. Any endangered or 
threatened species which may constitute 
a demonstrable but nonimmediate threat 
to human safety shall be reported to a 
federal or state wildlife enforcement 
officer, who, upon verification of the 
report, may take or remove the speci- 
men as provided by 15A NCAC 101 
.0002. 

(2) Other Wildlife Species. Except as 
provided in Subparagraph (1) of this 
Paragraph, the executive director of the 
Wildlife Resources Commission may, 
upon application of a landholder and 
after such investigation of the circum- 
stances as he may require, issue a 
permit to such landholder to take any 
species of wildlife which is or has been 
damaging or destroying his property 
provided there is evidence of substantial 
property damage. No permit may be 
issued for the taking of any migratory 
birds and other federally protected 
animals unless a corresponding valid 
U.S. Fish and Wildlife Service depreda- 
tion permit has been issued. The per- 
mit shall name the species allowed to 
be taken and, in the discretion of the 
Executive Director, may contain limita- 
tions as to age, sex or any other condi- 



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830 



PROPOSED RULES 



tion within the species so named. The 
permit may be used only by the land- 
holder, except that, upon written re- 
quest of the landholder and when it is 
conclusively determined on the basis of 
information submitted by him that he is 
incapable of accomplishing the neces- 
sary control without help, the names of 
additional persons may be entered upon 
the permit by the Executive Director as 
authorized users. 
(3) Taking Without a Permit. Except as 
provided in Subparagraph (1) of this 
Paragraph, a landholder may take wild- 
life except migratory birds and other 
federally protected animals upon his 
own land without a permit during 
closed season on the species involved 
only when such wildlife is in the act of 
damaging or destroying the property of 
such landholder. 

(b) Term of Permit. Each depredation permit 
issued by the Executive Director shall have entered 
thereon a date or time of expiration after which 
date or time the same shall become invalid for any 
purpose, except as evidence of lawful possession 
of any wildlife that may be retained thereunder. 

(c) Manner of Taking 

(1) Taking Without a Permit. Wildlife 
taken without a permit while commit- 
ting depredations to property may, 
during the open season on the species, 
be taken by the landholder by any 
lawful method. During the closed 
season such depredating wildlife may 
be taken without a permit only by the 
use of firearms. 

(2) Taking With a Permit. Wildlife taken 
under a depredation permit may be 
taken only by the method or methods 
specifically authorized by the permit. 
The only methods that may be autho- 
rized in taking game species, other than 
foxes, is by the use of firearms and live 
traps. The permit may authorize the 
taking of foxes, furbearing animals, and 
nongame animals or birds by the use of 
firearms or traps, including steel traps. 
When trapping is authorized, in order 
to limit the taking to the intended pur- 
pose, the permit may specify a reason- 
able distance from the property sought 
to be protected, according to the partic- 
ular circumstances, within which the 
traps must be set. The Executive Di- 



rector may also state in a permit autho- 
rizing trapping whether or not bait may 
be used and the type of bait, if any, 
that is authorized. In addition to any 
trapping restrictions that may be con- 
tained in the permit the method of 
trapping must be in accordance with the 
requirements and restrictions imposed 
by G.S. 113-291.6. No depredation 
permit shall authorize the use of poi- 
sons or pesticides in taking wildlife 
except in accordance with the provi- 
sions of the North Carolina Pesticide 
Law of 1971, the Structural Pest Con- 
trol Act of 1955, and Article 22A of 
Chapter 113 of the General Statutes of 
North Carolina. No depredation permit 
shall authorize the taking of wildlife by 
any method by any landholder upon the 
lands of another. 
(3) Intentional Wounding. It is unlawful 
for any landholder, with or without a 
depredation permit, intentionally to 
wound a wild animal in a manner so as 
not to cause its immediate death as 
suddenly and humanely as the circum- 
stances permit, 
(d) Disposition of Wildlife Taken 

(1) Generally. Except as provided by the 
succeeding Subparagraphs of this Para- 
graph, any wildlife killed accidentally, 
without a permit while committing 
depredations, or under a depredation 
permit, shall be buried or otherwise 
disposed of in a safe and sanitary man- 
ner on the property of the landholder in 
whose name the permit is issued or who 
kills such wildlife while committing 
depredations. 

(2) Deer. Any landholder who kills a deer 
under a currently valid depredation 
permit for deer must report such kill 
within 24 hours and before the deer is 
butchered for consumption to a wildlife 
enforcement officer, who upon deter- 
mining that the kill was lawfully made 
within the scope of the permit and if so 
requested by the permittee, shall pro- 
vide the permittee a written authoriza- 
tion for his own private use or the use 
by a charitable organization of the 
edible portions of the carcass. The 
nonedible portions of the carcass, in- 
cluding head, hide, feet, and antlers, 
shall be disposed of as specified in 



831 



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PROPOSED RULES 



Subparagraph (1) of this Paragraph or 
turned over to a wildlife enforcement 
officer for disposition. When a deer is 
accidentally killed on a road or highway 
by reason of collision with a motor 
vehicle, the law enforcement officer 
who investigates the accident shall, 
upon request of the operator of the 
vehicle, provide such operator a written 
permit authorizing him to possess and 
transport the carcass of such deer for 
his personal and lawful use, including 
delivery of such carcass to a second 
person for his private use or the use by 
a charitable organization upon endorse- 
ment of such permit to such person or 
organization by name and when no 
money or other consideration of value 
is received for such delivery or 
endorsement. 

(3) Fox. Any fox killed accidentally by a 
dog or dogs, motor vehicle, or 
otherwise shall be disposed of as 
provided by Subparagraph (1) of this 
Paragraph. Any fox killed under a 
depredation permit may be disposed of 
in the same manner or, upon 
compliance with the fiir tagging 
requirements of 15A NCAC lOB .0400, 
the carcass or pelt thereof may be sold 
to a licensed fiir dealer. Any live fox 
taken under a depredation permit may 
be sold to a licensed controlled hunting 
preserve for fox in accordance with 
G.S. 113-273(g). 

(4) Furbearing Animals. The carcass or 
pelt of any furbearing animal killed 
during the open season for taking such 
furbearing animal either accidentally or 
for control of depredations to property, 
whether with or without a permit, may 
be sold to a licensed fur dealer 
provided that the person offering such 
carcass or pelt for sale has a valid 
hunting or trapping license, provided 
further that, bobcats and otters may 
only be sold upon compliance with any 
required fur tagging requirement set 
forth in 15A NCAC lOB .0400. 

(5) Nongame Animals and Birds. 
Nongame animals or birds killed 
accidentally or for control of 
depredations may be disposed of as 
provided by Subparagraph (1) of this 
Paragraph or in any other safe and 



sanitary manner. 
(e) Reporting Requirements. The killing and 
method of disposition of every game animal and 
game bird, every furbearing animal, and every 
nongame animal or nongame bird for which there 
is no open season, when killed for committing 
depredations to property, either with or without a 
permit, shall be reported to the Wildlife Resources 
Commission within 24 hours following the time of 
such killing, except that when the carcass or pelt 
of a fox, killed under a depredation permit, or of 
a furbearing animal, killed with or without a 
permit, is lawfully sold to a licensed fur dealer in 
this State the fur dealer is required to report the 
source of acquisition and no report is required of 
the seller. 

Statutory Authority G.S. 113-134; 113-273; 
113-274; 113-291.4; 113-291.6; 113-300.1; 
113-300.2. 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0310 DARE COUNTY 

(a) Regulated Areas. This Rule applies to the 
following waters and portions of waters: 

(1) Manteo. Doughs Creek adjacent to 
Shallowbag Bay and all canals situated 
within the territorial limits of the Town 
of Manteo. 

(2) Hatteras. The waters of Hatteras 
Harbor and Muddy Creek bounded on 
the north and south by the high-water 
mark, on the west by a straight line 
between channel markers number 20 
and 1 7, and on the east by the mouth of 
Muddy Creek at Sandy Bay. 

(3) Mann's Harbor. The waters of Ferry 
Dock Road Canal. 

(4) Nags Head: 

(A) Those waters contained within the 
canals of Old Nags Head Cove 
Development; 

(B) The Roanoke Sound inlets at Pond 
Island on either side of Marina Drive 
extending north from US 64-264. 

(5) Wanchese: 

(A) The waters of Wanchese Harbor; 

(B) The Canal from its beginning where it 
connects with the Roanoke Sound 
south of the dead end road SR 1141 



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832 



PROPOSED RULES 



extending northwest roughly parallel 
to SR 1141 and SR 1142, then 
westward roughly parallel to NC 345, 
and finally curving to the southwest 
roughly parallel to the C.B. Daniels 
Road to its end. 

(6) Stumpy Point Canal. That portion of 
Stumpy Point Canal begiiming at the 
Wildlife Resources Commission boating 
access area and extending inland for a 
distance of 3,600 feet. 

(7) Stumpy Point Basin. That portion of 
the Stumpy Point Basin, at the head of 
the Stumpy Point Bay, which is next to 
Highway 264 in the dock area and 
designated by the appropriate markers. 

(8) Town of Southern Shores. The waters 
contained in the canals and lagoons 
within the territorial limits of the Town 
of Southern Shores. 

(9) Colington Harbour. The waters 
contained in the canals of Colington 
Harbour. 

(10) Kitty Hawk. Those waters contained in 
the canals of Kitty Hawk Landing 
Subdivision. 

(11) Washington Baum Bridge. Those 
waters of the Roanoke Sound from 
marker 24B north of the bridge to 
marker 24A south of the bridge, and 50 
yards east of the navigation span west 
to the shore as designated by the 
appropriate markers. 

(12) Colington Island. The waters contained 
in an area beginning at the bath house 
and recreation center on the western 
shore of Colington Island, running 600 
feet in a northerly direction and 
extending 300 feet into Albemarle 
Sound as marked. 

(b) Speed Limit. No person shall of>erate any 
motorboat or vessel at greater than no-wake speed 
within any of the regulated areas described in 
Paragraph (a) of this Rule. 

(c) Restricted Swimming Area. No person 
operating or responsible for the operation of any 
vessel, surfboard, water skis, or jet skis shall 
permit the same to enter any marked swimming 
area described in Subparagraph (12) of Paragraph 
ia) of this Rule. 

(d) (e) Placement and Maintenance of Markers. 
Subject to the approval of the United States Coast 
Guard and the United States Army Corps of 
Engineers, the following agencies are designated 
suitable agencies for placement and maintenance of 



markers implementing this Rule as to the regulated 
areas listed in the several Subparagraphs of 
Paragraph (a) of this Rule: 

(1) the Board of Commissioners of the 
Town of Manteo as to the areas 
indicated in Subparagraph (1); 

(2) the Board of Commissioners of Dare 
County as to the areas indicated in 
Subparagraphs (2) through (7), (9) and 

(11); 

(3) the Board of Commissioners of the 
Town of Southern Shores as to the 
areas indicated in Subparagraph (8); 

(4) the Board of Commissioners of the 
Town of Kitty Hawk as to the areas 
indicated in Subparagraph (a)(10). 

Statutory Authority G.S. 75A-3; 75A-15. 

.0311 GRANVILLE: VANCE AND WARREN 
COUNTIES 

(a) Definitions. In addition to the definitions set 
forth in Paragraph (b) of Rule .0301 of this 
Section, the following definitions shall apply in 
this Rule: 

(1) Corps. Corps of Engineers, United 
States Army; 

(2) Reservoir. John H. Kerr Reservoir in 
Granville, Vance and Warren Counties. 

(b) Speed Limit Near Ramps. No person shall 
operate a vessel at greater than no-wake speed 
within 50 yards of any concrete boat launching 
ramp located on the reservoir in said counties. 

(c) Speed Limit in Mooring Areas. No person 
shall operate a vessel at greater than no-wake 
speed while within a designated mooring area 
established by or with the approval of the Corps 
on the waters of the reservoir in said counties. 

(d) Restricted Swimming Areas. No p)erson 
operating or responsible for the operation of a 
vessel shall permit it to enter any designated 
swimming area established by or with the approval 
of the Corps on the waters of the reservoir in said 
counties. 

(e) Speed Limit at Kimball Point. No person 
shall operate a vessel at greater than no-wake 
speed within 50 yards of the shoreline in the 
northernmost cove of the Kimball Point Recreation 
Area in the reservoir, such recreation area being at 
the western end of SR 1204 in Warren County. 

(f) Speed Limit at Lower Mill Creek. No 
person shall operate a vessel at greater than 
no-wake speed beginning at a point on the eastern 
side of Lower Mill Creek where it intersects the 
North Carolina - Virginia state line, running across 



833 



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PROPOSED RULES 



the creek with said state line and then running in 
a southerly direction on both the east and west 
sides of the creek to the head waters and including 
all waters of the creek south of the state line. 

(p) 4^ Placement and Maintenance of Markers. 
The Corps is designated a suitable agency for 
placement and maintenance of markers 
implementing this Rule. The perimetere of 
designated swimming areas must be marked with 
float lines which, in conjunction with the 
shoreline, form completely enclosed areas. In 
addition, supplementary standards as set forth in 
Rule .0301(g)(2) to (7) and (9) of this Section shall 
apply. 

Statutory Authority G.S. 75A-3; 75A-15. 

.0323 BURKE COUP-JTY 

(a) Regulated Areas. This Rule applies only to 
the following lakes or portions of lakes which lie 
within the boundaries of Burke County: 

(1) Lake Hickory; 

(2) Lake James; 

(3) Lake Rhodhiss. 

(b) Speed Limit. No person shall operate a 
vessel at greater than no-wake speed within 50 
yards of any designated and marked public boat 
launching ramp, bridge, marina, boat storage 
structure, boat service area, dock or pier while on 
the regulated areas described in Paragraph (a) of 
this Rule or within 50 yards of any designated and 
marked private boat launching ramp, bridge, 
marina, boat storage structure, boat service area, 
dock or pier around the Holiday Shores 
Subdivision on Lake James or within 50 yards of 
the Lake James Campground^ or within 50 yards 
of the community docks at Laurel Pointe 
subdivision . 

(c) Speed Limit in Mooring Areas. No person 
shall operate a vessel at greater than no-wake 
speed while within a marked mooring area 
established with the approval of the Executive 
Director, or his representative, on the regulated 
areas described in Paragraph (a) of this Rule. 

(d) Restricted Swimming Areas. No person 
operating or responsible for the operation of a 
vessel shall permit it to enter any marked public 
swimming area established with the approval of the 
Executive Director, or his representative, on the 
regulated areas described in Paragraph (a) of this 
Rule. 

(e) Placement and Maintenance of Markers. 
The Board of Commissioners of Burke County is 
designated a suitable agency for placement and 
maintenance of the markers implementing this 



Rule, subject to the approval of the United States 
Coast Guard and the United States Army Corps of 
Engineers, if applicable. With regard to marking 
the regulated areas described in Paragraph (a) of 
this Rule, all of the supplementary standards listed 
in Rule .0301(g) of this Section shall apply. 

Statutory Authority G.S. 75A-3; 75A-15. 

.0365 TYRRELL COUNTY 

(a) Regulated Area. This Rule applies to the 
following waters in Terrell County: 

(1) That portion of the Scuppemong River 
from 3(X) yards west of the Highway 64 
bridge to 100 yards east of the High- 
way 64 bridge as designated by the 
appropriate markers. 

(2) That portion of the Scuppemong River 
from the Columbia Boat Ramp extend- 
ing 200 feet into the river as designated 
by the a ppropriate markers. 

(b) Sjjeed Limit. It is unlawful to operate a 
vessel at greater than no-wake speed in the regulat- 
ed areas described in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of TVrrell County is 
designated as the suitable agency for the placement 
and maintenance of the markers implementing this 
Rule. 

Statutory Authority G.S. 75A-3; 75A-15. 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15A NCAC 
19A .0502. 

A he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 1:30 
p.m. on October 20, 1994 at the Groundfloor 
Hearing Room, Archdale Building, 512 N. Salis- 
bury Street, Raleigh, NC. 

MVeason for Proposed Action: lb change the 
administration fee that physician 's who administer 
state-supplied childhood vaccines may charge for 
their services. This change is necessary because 
of new federal regulations regarding the distribu- 



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NORTH CAROLINA REGISTER 



September 1, 1994 



834 



PROPOSED RULES 



tion and administration of federally-purchased 
vaccines. The current rules allow physician's to 
charge no more than $15.00 for one dose of state- 
supplied vaccine and $5. 00 for each additional 
dose, up to a maximum of $25. 00. the Health 
Care Financing Administration (HCFA) has set the 
new rate for North Carolina at $12.15 per dose of 
vaccine administered. This rule change will have 
no fiscal impact on state or local government. The 
new administration fee must be in place by Octo- 
ber 1. 1994. 

L^omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, PO Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by November 2, 1994. Persons 
who wish to speak at the hearing should contact 
Mr Balentine at (919) 733-4618. Persons who 
call in advance of the hearing will be given 
priority on the speaker's list. Oral presentation 
lengths may be limited depending on the number of 
people that wish to speak at the public hearing. 
Only persons who have made comments at a public 
hearing or who have submitted written comments 
will be allowed to speak at the Commission 
meeting. Comments made at the Commission 
meeting must either clarify previous comments or 
proposed changes from staff pursuant to comments 
made during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, IN^HTUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RULES AT THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S 150B-21.2(f). 

tiiditor's Note: This Rule was filed as a 
temporary amendment effective October 1, 1994 
for a period of 180 days or until the permanent 
rule becomes effective, whichever is sooner. 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 



SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTROL 

SECTION .0500 - PURCHASE AND 
DISTRIBUTION OF VACCINE 

.0502 VACCINE FOR PROVIDERS OTHER 
THAN LOCAL HEALTH 
DEPARTMENTS 

(a) The Department of Environment, Health, 
and Natural Resources provides vaccines required 
by law free of charge to the following providers 
for administration to individuals who need vaccines 
to meet the requirement of G.S. 130A-152, 
130-155.1 and 15A NCAC 19A .0401: 

(1) Community, migrant, and rural health 
centers; 

(2) Colleges and universities for students; 
and 

(3) Physicians and other health care provid- 
ers. 

(b) Upon request of the Department, required 
vaccines may be distributed by local health depart- 
ments operating as agents of the State to providers 
listed in Subparagraphs (a)(1), (2) and (3) of this 
Rule. 

(c) Providers authorized in Paragraph (a) of this 
Rule shall be eligible to receive free vaccines from 
the Department only if they sign an agreement 
with the Department. This agreement will be 
prepared by the Immunization Branch and will 
require the provider to: 

{4^ Charg e no mor e than fift ee n doUaro 

($15.00) for one dose of vaooin e and 
fiv e dollars ($5.00) for eaoh additional 
doo e , up to a maximum of twenty fiv e 
doUaro ($25.00) as a r e oaonablo foo for 
administration of vaooineB giv e n at a 
s ingl e visit; 

(1) Charge no more than thirteen dollars 
and fifteen cents ($13.15) for one dose 
of vaccine, ug to a maximum of twenty 
six dollars and thirty cents ($26.30) as 
a reasonable fee for administration of 
vaccines given at a single visit; 

(2) Provide all vaccines needed during a 
visit unless a specific contraindication 
exists to one or more of the vaccines; 

(3) Charge no oflice fee in addition to an 
administration fee for an 
immunization-only visit; 

(4) Agree not to charge an administration 
fee to an individual who states that they 
are unable to pay; 

(5) Impose no condition as a prerequisite to 



835 



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PROPOSED RULES 



receiving vaccine; 

(6) Report in writing or electronically the 
name and social security number of the 
person to whom vaccine was 
administered, the date of 
administration, the type and dose of 
vaccine(s) administered and the 
provider number of the physician or 
clinic administering the vaccine to the 
Immunization Branch, at least monthly 
by the fifth day of each month; 

(7) Report adverse vaccine reactions 
through the Vaccine Adverse Event 
Reporting System (VAERS); 

(8) Obtain a signed Important Information 
Statement (IIS), Vaccine Information 
Pamphlet (VIP), or a separate signature 
card or log sheet that contains a 
declarative statement specified by the 
Branch for each dose of vaccine 
administered; retain the signed portion 
for a period of 10 years following the 
end of the calendar year in which the 
form was signed, or for 10 years 
following the recipient's age of 
majority, whichever is longer; upon 
request, furnish copies of the signed 
portion to the local health department 
or the Department; keep a record of the 
vaccine manufacturer, lot number, and 
date of administration for each dose of 
vaccine administered; 

(9) Allow periodic inspection of their 
vaccine supplies and records by the 
Immunization Branch; and 

(10) Comply with the rules of this Section, 
(d) A provider who fails to submit timely and 

accurate reports, as required in Paragraph (c) of 
this Rule, twice in any 12 month period shall have 
their eligibility to receive state vaccine suspended 
for a period of one year. A provider who fails to 
comply with any of the other requirements of this 
Rule may have their eligibility suspended by the 
Department for a period determined by the 
Department and may be subject to an action 
brought pursuant to G.S. 130A-27. All 

suspensions of eligibility shall be in accordance 
with G.S. 130A-23. 

Statutory Authority G.S. 130A-152; 130A-155.1; 
130A-433; S.L. 1986, c. 1008, s. 2; S.L. 1987, c. 
215. s. 7. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 



CHAPTER 4 - COMMISSION 
FOR AUCTIONEERS 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Auctioneers 
Commission intends to amend rules cited as 21 
NCAC 4B .0103 - .0104, .0201 - .0202. .0301. 
. 0401 - . 0405, . 0501 - . 0502. . 0601 - . 0603; adopt 
4B .0604 - .0605 and .0701 . 

1 he proposed effective date of this action is 
December 1. 1994. 

1 he public hearing will be conducted at 2:00 
p.m. on September 20, 1994 at the N.C. Auction- 
eers Commission Offices. 3509 Haworth Drive. 
Suite 306. Raleigh. NC 27609. 

MXeason for Proposed Action: The Auctioneers 
Commission has proposed this action as a result of 
numerous statutory revisions made in the Auction- 
eers Law (G S. 85 B) in January and July 1993; to 
further clarify previously amended rules; and to 
make various technical changes. 

(comment Procedures: Interested persons may 
present oral or written comments at the Rule- 
Making Hearing. In addition, the record of 
hearing will be open for receipt of written com- 
ments from September 1. 1994 through October 3, 
1994. Written comments not presented at the 
hearing should be directed to Viiyne Woodard. 
The proposed rules are available for public inspec- 
tion and copies may be obtained at the 
Commission 's Offices at: 3509 Haworth Dr. , Ste. 
306, Raleigh. NC 27609. 

SUBCHAPTER 4B - AUCTIONEER 
LICENSING BOARD 

SECTION .0100 - ORGANIZATION 
AND GENERAL PROVISIONS 

.0103 DEFINITIONS 

Whenever used in this Chapter: 

fi) "Auction Firm" — sfeeH — m e an — any sol e 

propri e torship, partn e rship or corporation 
whioh in the regular oourso of bu a in e s B 
promotofl auctions, e mploy s auotion ee ro 
to conduct auctions in its faciliti es , or 
us e s or allows th e us e of its fiiciliti e s for 
auctions. This d e finition applies whether 



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September 1, 1994 



836 



PROPOSED RULES 



ef — Bet — ftH — own e r — ef — officer — of that 
busin e oo aoto as an auction ee r. 

(1) (3) "Auctioneers Law" or "licensing law" 
shall refer to Chapter 85B, General 
Statutes of North Carolina; 

(2) {^ "Board" shall mean the North 
Carolina Auctioneers Commission; 

f^) "Executiv e Dir e ctor" shall r e f e r to th e 

s e cr e tary treasur e r of th e Board: 

(3) "Minimum Bid" as used in auctions shall 
mean minimum opening bids. 

Statutory Authority G. S. 85B-1; 85B-3(f). 

.0104 ADMINISTRATIVE LAW 
PROCEDURES 

(a) Contested Cases. Administrative hearings in 
contested cases conducted by the Board or an 
administrative law judge (as authorized in G.S. 
150B-40) shall be governed by: 

(1) procedures set out in Article 3 A of 
G.S. Chapter 150B; 

(2) insofar as relevant, the Rules of Civil 
Procedure as contained in G.S. lA-1; 

(3) insofar as relevant, the General Rules 
of Practice for the Superior and District 
Courts as authorized by G.S. 7A-34 
and found in the Rules Volume of the 
North Carolina General Statutes. 

The rules of Civil Procedure and the General 
Rules of Practice for the Superior and District 
Courts are hereby adopted by reference for 
contested cases for which the Board has authority 
to adopt rules under G.S. 150B-38Gi). Such 
adoptions by reference shall automatically include 
any later amendments and editions of the adopted 
matter as authorized by G.S. 1 SOB- 14(c). 

(b) Declaratory Rulings. In addition to the 
procedures set out in G.S. 150B 17 I50B-4 , 
petitions for declaratory rulings shall be submitted 
to the Board and shall contain: 

(1) petitioner's name, address and 
telephone number; 

(2) the statute, rule, or both to which the 
request relates; 

(3) all facts and infbrmation which are 
relevant to the request; 

(4) a concise statement of the manner in 
which petitioner has been aggrieved; 

(5) a draft of the declaratory ruling sought 
by petitioner, if a specified outcome is 
sought by petitioner; 

(6) practices likely to be affected by the 
declaratory ruling; 

(7) a list or description of persons likely to 



be affected by the declaratory ruling; 
and 
(8) a statement as to whether the petitioner 
desires to present oral argument, not to 
exceed 30 minutes, to the Board prior 
to its decision. 

The Board shall ordinarily refuse to 
issue a declaratory ruling when: 

(A) the petition does not comply with this 
subdivision; 

(B) the Board has previously issued a 
declaratory ruling on substantially 
similar facts; 

(C) the Board has previously issued a 
final agency decision in a contested 
case on substantially similar facts; 

(D) the facts underlying the request for a 
declaratory ruling were specifically 
considered at the time of the adoption 
of the rule in question; or 

(E) the subject matter of the request is 
involved in pending litigation. 

(c) Petitions For Rule-Making. In addition to 
the procedures set out in G.S. 15QB 16 150B-18 . 
petitions for rule-making shall be submitted to the 
Board and shall contain: 

(1) petitioner's name, address and 
telephone number; 

(2) a draft of the proposed rule or rule 
change; 

(3) the reason for its proposal; 

(4) the effect of the proposal on existing 
rules or decisions; 

(5) data supporting the proposal; 

(6) practices likely to be affected by the 
proposal; and a list or description of 
persons likely to be affected by the 
proposal-j and 

(7) a list or description of persons likely to 
be affected by the proposal. 

Statutory Authority G.S 85B-3(f); 85B-8; 150B-4; 
150B-14(a)(l),(c); 150B-18; 150B-38(h). 

SECTION .0200 - APPLICATION 
FOR LICENSE 

.0201 APPLICATION FORMS 

(a) Auctioneer. Each applicant for an auctioneer 
license shall complete an application form provided 
by the Board. This form shall be submitted to the 
e x e cutiv e dir e ctor Executive Director and shall be 
accompanied by: 

(1) one recent bead — aed — Bhouldoro 
photogmph ef — the applicant ef 



837 



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September 1, 1994 



PROPOSED RULES 



aoooptable — quality passport-type 
photograph for identification^ — twe 
inohoo by two inoh e o in oize ; 

(2) statements of the results of a local 
criminal history records search by the 
clerk of superior court (or equivalent 
official in other states) in each county 
where the applicant has resided ef and 
maintained a business within the 
immediate preceding 60 months (five 
years); 

(3) the proper fees, as required by 21 
NCAC 4B .0202; 

(4) documentation of required schooling or 
experience, as follows: 

(A) Applicants who base their application 
upon their successful completion of an 
approved school of auctioneering must 
submit a photostatic copy of their 
diploma or certificate of successful 
completion. A pplicants who base 
their a pplication upon their successful 
completion of an a pproved school of 
auctioneering must have successfully 
completed this school within the 
previous five years, or if completed 
more than five years before, the 
a pplicant must submit documentation 
verifying the a pplicant's active lawful 
participation In auctions within the 
two years preceding the date of 
a pplication. 

(B) Applicants who base their application 
upon their successful completion of an 
apprenticeship must submit a log 
which was maintained and completed 
during the apprenticeship period 
which details the exact hours and 
dates on which they obtained 
apprenticeship experience, with each 
entry being verified and signed by 
their supervising auctioneer. A 
minimum of 100 hours of experience 
during the apprenticeship two-year 
period must be obtained. Not less 
than 25 of the total hours accumulated 
must be attributable to bid calling and 
not less than 50 hours must be 
attributable to working as a ring man, 
drafting and negotiating contracts, 
appraising merchandise, advertising, 
clerking and cashiering, with not less 
than five hours of accumulated 
experience documented for each 
category. An apprentice who applies 



for an auctioneer license under this 

subsection must submit his application 

and supporting documentation and 

obtain a passing score on the 

auctioneer exam prior to the 

expiration of his apprentice auctioneer 

license. 

(5) Non-resident applicants must also 

submit a properly completed 

"Designation of Agent for Service of 

Process Form" with notarized signature 

and notarial seal affixed. 

(b) Non-Resident Reciprocal Auctioneer. Each 
non-resident applicant for auctioneer license, who 
applies for a North Carolina license pursuant to 
G.S. 85B-5 shall complete an application form 
provided by the Board. This form shall be 
submitted to the Executive Director and shall be 
accompanied by: 

(1) one recent passport-type photograph 
b«ad — and — s hould e r s — photograph — ef 
aoo e ptnbl e — quality for identification^ 
two inoheo by two inoh e a in e ize ; 

(2) statements of the results of a local 
criminal history records search by the 
clerk of superior court (or equivalent 
official) in each county where the 
applicant has resided er and maintained 
a business within the immediate 
preceding 60 months (five years); 

(3) the proper fees, as required by 21 
NCAC 4B .0202; 

(4) a statement of good standing from the 
licensing board or Commission of each 
and every jurisdiction where the 
applicant holds ef — has — b«ld an 
auctioneer, apprentice auctioneer or 
auction firm license; and 

(5) a properly completed "Designation of 
Agent for Service of Process Form" 
with notarized signature and notarial 
seal affixed. 

(c) Apprentice Auctioneer. Each applicant for 
an apprentice auctioneer license shall complete an 
application form provided by the Board. This 
form shall be submitted to the e x e cutiv e dir e ctor 
Executive Director and shall be accompanied by: 

(1) one recent passport-type head — and 
Bhould e ro photograph of th e applicant of 
aoo e ptnbl e — quality for identification^ 
two inch e s by two inoho o in o izo ; 

(2) statements of the results of a local 
criminal history records search by the 
clerk of superior court (or equivalent 
official) in each county where the appli- 



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838 



PROPOSED RULES 



cant has resided of and maintained a 
business within the immediate preced- 
ing 60 months (five years); 

(3) the proper fees, as required by 21 
NCAC 4B .0202; 

(4) the signature, as designated on the 
application form, of the licensed auc- 
tioneer who will be supervising the 
apprentice auctioneer; and 

(5) a written statement of the proposed 
supervisors background and experience 
in the auction profession to include the 
number and types of auctions conducted 
or participated in annually; and 

(6) 0) if applicant is a non-resident, a 
properly completed "Designation of 
Agent for Service of Process Form" 
with notarized signature and notarial 
seal affixed. 

(d) Auction Firms. Each applicant for an 
auction firm license shall complete an application 
form provided by the Board. This form shall be 
submitted to the oxcoutivo — dir e ctor Executive 
Director and shall be accompanied by: 

(1) statements of the results of a local 
criminal history records search by the 
clerk of superior court (or equivalent 
official) in each county where any 
principal and designated person of the 
auction firm has resided ef and main- 
tained a business within the immediate 
preceding 60 months (five years); 

(2) the proper fees, as required by 21 
NCAC 43 .0202; 

(3) a certified copy of any applicable Arti- 
cles of Incorporation, Partnership 
Agreement, and/or Assumed Name 
Certificate; 

(4) a statement of good standing from the 
licensing board or Commission of each 
jurisdiction where the applicant firm 
and any principal and designated person 
of such firm holds an auctioneer license 
of any type; and 

(5) if applicant firm is a non-resident, a 
properly completed "Designation of 
Agent for Service of Process Form" 
(one each for the auction firm and for 
each principal and designated person of 
the firm) with notarized signature and 
notarial seal aflixed and, if a corpora- 
tion, appropriate corporate seal and 
corporate secretary's signature afiixed. 

Statutory^ Authority G.S. 85B-3(f); 85B-4; 85B- 



4(d); 85B-5. 

.0202 FILING AND FEES 

(a) Properly completed applications must be 
filed (received, not postmarked) in the Board 
ofl[ice on or before the filing date established by 
the Board for a scheduled examination and must be 
accompanied by all required documents. 

(b) License fees are as follows: 

(1) New auctioneer license for an applicant 
who did not serve 

an apprenticeship $ 100.00 125.00 

This includes a $75. (X) annual license 
fee; and n $25.00 application fee^ and 
$25. (X) examination fee. 
New auctioneer license for an appren- 
tice auctioneer $ 75t00 100.00 
This » includes a $75.00 annual license 
feer i and $ 25. (K) examination fee. 
Renewal of auctioneer license $75.00 
New apprentice auctioneer 
license $ 50.00 
This includes a $25.00 license fee and 
a $25.00 application fee. 
Renewal of apprentice auctioneer li- 
cense $ 25.00 
New auction firm license (no examina- 
tion) 



(2) 



(3) 
(4) 



(5) 
(6) 

01 



18} 
(9) 

(10) 



$ T^tOO 100.00 
This is includes a $75.00 aimual license 
fecr ;and $25.00 application fee. 
New auction firm license (examina- 
tion) $125.00 
This includes a $75.00 armual license 
fee; $25.00 a pplication fee; and $25.00 
examination fee. 
{^ Renewal of an auction firm 
license $ 75.00 
A pplication and processing fee for 
conversion of non-resident reciprocal 
license to in-state license $ 25.00 
Reinstatement of lapsed 
license fee 



$ 25.00 

(c) Fees shall be paid in the form of a cashier's 
check, certified check or money order made 
payable to the North Carolina Auctioneer Licens- 
ing Board. Checks drawn on escrow or trust 
accounts are not accepted. However, personal 
checks may be accepted for payment of renewal 
fees. 

Statutory Authority G.S. 85B-4.1; 85B-6. 

SECTION .0300 - EXAMINATIONS 

.0301 SUBJECT MATTER 



839 



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PROPOSED RULES 



(a) The auctioneer license examination shall test 
the applicant's knowledge of the following 
required subjects: 

(1) a practical and working knowledge of 
the auction business including 
fundamentals of auctioneering, contract 
drawing, bid calling, basic 
mathematical computations and 
percentages, advertising, and settlement 
statements; 

(2) the provisions of the licensing law; and 

(3) the rul e s Rules and regulations of the 
Board. 

(b) The auction firm license examinations shall 
test the applicants knowledge of the following: 

(1) the provisions of the licensing law; and 
£2} the Rules and regulations of the Board- 



promulgated in this Chapter . All licenses expire 
on June 30 each year. 

(b) Applications for renewal of licenses will 
only be processed by the Board upon receipt of the 
required fee and any records, documents, or 
information, requested pursuant to Paragraph (a) of 
this Rule. 

(c) {b) Any person or entity who engages in any 
auctioneering activities governed by the 
auctioneers law while hk the license is lapsed will 
be subject to the penalties prescribed in the law. 

(d) {e) Licenses lapsed or suspended in excess of 
24 months shall not be renewable. Persons or 
firms whose license has been lapsed or suspended 
in excess of 24 months and who desire to be 
licensed shall apply for a new license and shall 
meet all the requirements then existing. 



Statutory Authority G.S. 85B-4(d)(g). 

SECTION .0400 - LICENSING 

.0401 LICENSE NUMBER: DISPLAY 

OF LICENSE AND POCKET CARD 

(a) When being licensed each individual or firm 
shall be issued a license number which remains 
solely his. Should that number be retired for any 
reason (such as death, failure to continue in the 
auction business, failure to renew his license, or 
any other reason) that number will not be reissued 
to any other individual or firm. 

(b) A pocket card will be issued by the 
e x e cutiv e dir e ctor Executive Director giving the 
auctioneer^ ef apprentice auctioneer^ or auction 
firm's name, license number and date of 
expiration. The pocket card must be carried by 
the licensee^, and in the case of auction firms the 
designated person(s). at all times when 
auctioneering activities are being conducted and 
shall be available for inspection by the Executive 
dir e ctor Director or a dooignoc designated agent of 
the Board. An auction firm shall display its 
license in a prominent place upon its premises, so 
as to be visible for inspection by patrons of the 
firm. 

Statutory Authority G.S. 85B-3(f}; 85B-4. 

.0402 LICENSE RENEWAL 

(a) Any licensee desiring the renewal of a 
license which is in good standing shall apply for 
same and shall submit the required fee fees and 
such records or documentation requested by the 
Executive Director to verify the licensee's 
compliance with G.S. 85B and the rules 



Statutory Authority G.S. 85B-3(f); 85B-4. 

.0403 APPRENTICE AUCTIONEER 
LICENSE 

(a) An apprentice auctioneer's license is valid 
only while he is associated with and supervised by 
a licensed auctioneer assigned by the Board. In 
order to be assigned by the Board as a supervisor, 
the Board must receive a written notice, signed by 
the prospective supervisor and the apprentice, 
requesting that the licensed auctioneer be assigned 
as a supervisor for the apprentice. Upon receipt of 
such a request, the Board shall mok e evaluate the 

requested assignment-; how e v e r, and such 

requested assignment may be denied by the Board 
for good caus e shown if the prospective supervisor 
fails to possess a minimum of five years of active 
experience in the auctioneering profession or an 
equivalent combination of training and experience . 
Upon termination of the association between the 
supervisor and the apprentice, the supervisor shall 
immediately notify the Board in writing, showing 
the date and cause of termination. 

(b) The supervising auctioneer must be on the 
premises of the sale location at any and all times 
that an apprentice auctioneer is engaged in bid 
calling. Additionally, the supervising auctioneer 
shall be responsible for supervising the apprentice 
on a regular basis and ensuring that the apprentice 
auctioneer conforms with the auctioneer law and 
rul es Rules promulgated by the Board. 

(c) Any licensed auctioneer who undertakes the 
sponsorship of an apprentice auctioneer shall 
ensure that the apprentice receives proper training, 
supervision, and guidance in the following: 

(1) A practical and working knowledge of 
the auction business including 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



840 



PROPOSED RULES 



(2) 
(3) 

(4) 



fundamentals of auctioneering, contract 

drafting, bid calling, basic mathematical 

computations, advertising, and 

settlement statements; 

The provisions of the licensing law; 

The rules Rules and regulations of the 

Board; and 

The preparation and maintenance of 

written agreements, record books, and 

other sales records as required by law. 

(d) Apprentices are prohibited from conducting 
or contracting to conduct any auction without the 
prior express written consent of the sponsor. No 
sponsor shall authorize an apprentice to conduct or 
contract to conduct an auction^ ef to act as 
principal auctioneer or handle any funds related to 
an auction unless the sponsor has determined that 
the apprentice has received adequate training to do 
so. An apprentice auctioneer may work under 
only one licensed auctioneer at any given time. 

(e) TTie sponsor shall be responsible for ensuring 
that the apprentice complies with all of the laws, 
rul e s Rules and regulations as they apply to any 
auction related transaction approved by the 
sponsor. 

(f) An apprentice auctioneer is also required to 
notify the Board, in writing, immediately upon 
termination of his association with his supervising 
auctioneer, at which time his license will be 
immediately held in an inactive status. Aft 
apprentic e auction ee r may work und e r only one 
lio e n se d auction e er at any giv e n tim e . ]f an 
apprentice auctioneer's supervising auctioneer's 
license has been suspended, revoked, or placed on 
probation the a pprentice auctioneer's license will 
be immediately held in an inactive status. Once in 
this an inactive status, an apprentice auctioneer 
shall not conduct or contract to conduct any 
auction. An apprentice auctioneer may only 
remain in this inactive status for a maximum of 90 
days. If the apprentice auctioneer retains another 
sponsor approved by the Board within this 90 day 
period, the apprentice auctioneer's license will not 
be deemed to have lapsed under 21 NCAC 4B 
.0402(d). 

Statutory Authority G.S. 85B-3(f); 85B-4. 

.0404 GROUNDS FOR LICENSE 
DENIAL OR DISCIPLINE 

(a) The Board may deny, suspend, or revoke a 
license, or issue a letter of reprimand to a licensee, 
upon any of the following grounds: 

(1) violation of any provision of G.S. 
Chapter 85B; 



(2) violation of any provision of the rulo s 
Rules under 21 NCAC, Subchapter 4B; 

(3) a check given to the Board in payment 
of required fees which is returned 
unpaid; 

(4) allowing an unlicensed bid call e r person 
(auctioneer) to efy call a bid at a sale; 

(5) orying calling a bid at an unlicensed 
auction firm sale; 

(6) failure to properly, completely and fully 
complete an application or making any 
false statement or giving any false 
information in connection with an 
application for a license, renewal or 
reinstatement of a license or any 
investigation by the Board or the 
Board's designee; 

(7) been adjudicated mentally incomf)etent 
by a court; 

(8) committed a crime the circumstances of 
which substantially relate to the 
auctioneering profession; 

(9) violated any federal or state statute or 
rule which relates to the auctioneering 
profession; 

(10) practiced the profession for which the 
holder has a license while the holder's 
ability to practice was impaired by 
alcohol or other drugs or physical or 
mental disability or disease; 

(11) been incompetent in practice. A 
licensee has been incompetent in 
practice if the licensee engaged in 
conduct which evidences a lack of 
ability, fitness or knowledge to apply 
principles or skills of the auctioneering 
profession; 

(12) engaged in unprofessional conduct. In 
this Paragraph "unprofessional conduct" 
means the violation of any standard of 
professional behavior which through 
professional experience has become 
established in the auctioneering 
profession; 

(13) obtained or attempted to obtain 
compensation by fraud or deceit; 

(14) violated any order of the Auctioneer 
Licensing Board; 

(15) failure to possess truth, honesty and 
integrity sufficient to be entitled to the 
high regard and confidence of the 
public; or 

(16) failure to properly make the disclosures 
required by 21 NCAC 4B .0405. 

(b) When applying the requirements of Rule 



841 



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NORTH CAROLINA REGISTER 



September 1, 1994 



PROPOSED RULES 



.0404(a) to auction firms and/or their applications, 
the requirements shall apply to the firm, the 
applicant for the license, and all the principalSj aed 
officers and designated person of the firm. 

Statutory Authority G.S. 85B-8(a)(l); 85B-30. 

.0405 INVOLVEMENT IN COURT 

ACTION OR ADMINISTRATIVE 
HEARING 

(a) All auctioneers, apprentice auctioneers and 
auction firms, including their principals^ aad 
designated person(s). and officers, are under a 
continuing duty to report to the Board any and all 
criminal arrests for, charges of or convictions of a 
misdemeanor that has as an essential element 
dishonesty, deceit, fraud or misrepresentation^ or 
a any arrests, charges or convictions of any felony. 
Convictions include findings of guilt, guilty pleas, 
and pleas of nolo contendere. The Board must 
receive notice of any such arrest, charge or 
criminal conviction within 30 days of its the 
occurrence of any or all of these events . 

(b) All auctioneers, apprentice auctioneers and 
auction firms, including their principals^ esd 
designated person(s). and officers, are under a 
continuing duty to report to the Board any and all 
civil suits involving them that are based upon any 
allegation of gross negligence, dishonesty, fraud, 
misrepresentation or incompetency, or that in any 
way involve and auction sale or a transaction 
related to an auction matter or auctioneering. The 
Board must receive notice of any such civil suit 
within 30 days of the date the complaint in the suit 
is served on the defendant in the action, or the 
date a pleading containing one or more of these 
allegations is served on a party. 

(c) All auctioneers, apprentice auctioneers and 
auction firms, including their principals^ and 
designated person(s) and, officers, are under a 
continuing duty to report to the Board any and all 
administrative proceedings which are commenced 
against them which involve any potential 
revocation or suspension of, or other disciplinary 
action against, any auction license or auctioneer 
license that they hold in another state. The Board 
must receive notice of any such administrative 
proceeding within 30 days of the date the 
auctioneer, apprentice auctioneer or auction firm, 
including its principals and officers, is notified of 
the administrative proceeding. 

Statutory Authority G.S. 85B-3(f); 85B-4. 

SECTION .0500 - SCHOOLS OF 



AUCTIONEERING 

.0501 APPLICATION FOR COURSE 
APPROVAL 

(a) Schools of auctioneering seeking approval of 
their course shall file an application with the Board 
on the official school stationery. The application 
shall include the following information: 

(1) name, mailing address and telephone 
number of the school; 

(2) name, mailing address and telephone 
number of the school owner, manager 
and any other person responsible for 
conducting the overall operation of the 
school; 

(3) physical location, including street ad- 
dress, of the place where classes will be 
conducted; and 

(4) a list of all subjects to be taught and the 
number of hours of instruction devoted 
to each subjectT^ 

(5) lesson outlines and accompanying hand- 
outs for each subject to be taught: and 

(6) verification for each prospective in- 
structor showing compliance with the 
standards set out in 2\ NCAC 4B 
.0502(d). 

(b) The school shall notify the Board within 30 
days of any change in the information required in 
Paragraph (a) of this Rule and this requirement 
shall continue as long as the school remains 
approved by the Board. 

Statutory Authority G.S. 85B-3(f); 85B-4(d). 

.0502 REQUIREMENTS FOR APPROVAL/ 
MINIMUM STANDARDS 

(a) In order to be accepted as an approved 
school, and in order to remain approved, the 
course curriculum must contain classroom 
instruction in the following subjects for the 
minimum number of hours shown: 

{4^ Sixt ee n — houna Bid — oolling, — voic e 

control, — proper breathing t e ohniqu e o, 
and uoe and ooquonoo of numboro; 

(3) Eight hours — Antiqu es and furnitur e ; 

{5^ Eight houro — Farm equipm e nt; 

^ Four houre Auotionoors Law, Rules 

and — R e gulations, — and — Auction ee ring 
Ethics; 

{5) Six hours — Adv e rtising, Drawing Sal e 

Bills, Drawing Contmots; 

{6) Eight houra — Aooounting, Bookkeeping 

Proo e dureo, — Final — Sottlomont — Stat e 
m e nts; 



9:11 



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September 1, 1994 



842 



PROPOSED RULES 



f?) Six hour s — Real E s tat e at Auction; 

(8) Throe houro — Automobile Auotionn; 



m- 



Thr ee hour s — Cattl e and Liv e etook; 



fiO) Six houre 

Sa l CO' 
(44^ On e hour 



Estat e and — Banlcruptoy 

Hygien e and P e rsonal Ap 



poarano e ; 
Three hours 



Tobaooo Auotion o ; 



fl43 Tv . 'o hours — Art, Rugs, J e w e lry, e to.; 

ft4) Throe hours — Liquidations; 

fi5) Thr ee houre — R e vi e w, Testing, e to., at 

th e e nd of the oours e . 
(1) Essential Core Curriculum (Minimum 
50 hours) 

16 Hours ; Bid calling. Voice Control, 
Proper Breathing Techniques, and Use 
and Sequence of Numbers; 
4 Hours ; Advertising 
8 Hours z Auctioneers Law and Rules 
and Regulations 

2 Hours ; Uniform Commercial Code 
and Bulk Transfers 

2 Hours ; Drafting and Negotiating 
Contracts 

2 Hours ; Closing Statements and 
Settlements 

8 Hours 2 Accounting and Mathematics 
i Hour z Auctioneering Ethics 
2 Hours ; Handling Sale Proceeds and 
Escrow Accounts 

2 Hours ; Auction Preparation and 
Setup 

3 Hours ; Review and Testing (End of 
Course). 

Supplemental Instruction Areas (Mini- 
mum 30 hours) 

Art, Rugs, Jewelry 
Body Language 
Farm Machinery 
Heavy Equipment 
Automobiles 



£2] 

Antiques 
Real Estate 
Tobacco 



Environmental Issues 

Computers 

Firearms 



Cattle and Livestock 

Foreclosure & Bankruptcy Sales 
Public Speaking Estate Sales 

Hygiene & Personal Appearance 
Appraising Ring Work 

Sales Tax Requirements Consignment Auctions 
Minimum hours are not required in individual 
supplemental subjects, however, all topics must be 
addressed in the school. 

fb) Students attending an approved course must 
attend and successfully complete a minimum of 80 
hours of classroom instruction according to the list 
of subjects and minimum hours of instruction in 
each subject specified in Paragraph .0502 (a) of this 



Rule. An hour of creditable instruction is defined 
as 50 minutes of classroom instruction or practical 
exercise accompanied b^ a 10 minute break. 

(c) Each course offered must include instruction 
by a minimum of five different instructors, at least 
three of whom must be professional auctioneers. 
Regardless of the total number of hours taught by 
any given instructor, no more than 20 hours of an 
individual's instruction may be counted to satisfy 
the requirements of Paragraph .0502 (a) of this 
Rule . 

(d) All persons who instruct in an approved 
school must have a minimum of five years training 
or experience, or a combination thereof, in the 
particular field in which they are instructing. 
Additionally, an instructor may not be utilized by 
a school if he has committed any act or violation 
specified in 21 NCAC 4B .0404, unless such 
instruction is specifically approved by the Board in 
writing. 

(e) The school shall provide or make available 
suitable facilities, equipment, materials and sup- 
plies necessary for the course, specifically includ- 
ing: 

(1) a comfortable, well-lighted and ventilat- 
ed classroom with a seating capacity 
sufficient to accommodate all students; 
and 

(2) audio-visual equipment and other in- 
structional devices and aids necessary 
and beneficial to the delivery of eflFec- 
tive training. 

Statutory Authority G.S. 85B-3(f); 85B-4(d). 

SECTION .0600 - GENERAL 
AUCTIONEERING 

.0601 CHANGE OF ADDRESS OR 

BUSINESS NAME OR OWNERSHIP 

(a) All licensees shall notify the Board in writ- 
ing of each change or addition of residence or 
business address (including mailing address) ef and 
change of trade name^ assumed name, or combina- 
tion of names the licensee conducts business 
related to auctions, within ten day s of suoh change. 

(b) In the case of a corporate licensee, said 
licensee shall immediately notify the Executive 
Director of any change in the directors or officers 
of the corporation and such new director(s) or 
officer(s) shall comply with the provisions of 
Subparagraphs (d)(1), (4) and (5) in Rule .0201 of 
this Subchapter. If the new directors or officers 
have a 51% or greater controlling interest in the 
corporation, the firm license shall be retired and 



843 



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PROPOSED RULES 



the firm must apply for a new license. 

(c) In the case of a partnership license, said 
licensee shall immediately notify the Executive 
Director of any change in partners and such new 
partners shall comply with the provisions of 
Subparagraphs (d)(n. (4) and (5) in Rule .0201 of 
this Subchapter. 

(d) In the case of an auction firm license, the 
licensee shall immediately notify the Executive 
Director of any change in designated person(s) and 
such designated persons shall comp ly with the 
provisions of Subparagraphs (dKD. (4) and (5) in 
Rule .0201 of this Subchapter. 

(e) Any change in address, business name or 
ownership required by these Rules must be report- 
ed within 10 days of the occurrence of such 
change. 

Statutory Authority G. S. 85B-3(f). 

.0602 ADVERTISING 

(a) In all advertisements relating to an auction, 
the auctioneer's, apprentice auctioneer's or auction 
firm's name and license number shall be clearly 
given. If an auctioneer is working for or in 
conjunction with an auction firm, such relation- 
ships must be disclosed and both license numbers 
shall be clearly given. A general advertisement 
which does not concern a specific sale(s) and 
which does not list sale dates, times or locations, 
generally referred to as trolling or holding adver- 
tisements, is not subject to any identification 
requirement. A licensee may advertise under a 
name, assumed name, trade name, or combination 
of names, only if proper written notice has been 
previously filed with the Board. The licensee shall 
also notify the Board of all certificates filed with 
any county register of deeds in compliance with 
G.S. 66-68. 

(b) Any licensee who advertises an "Estate Sale" 
must specifically disclose, in all advertisement 
materials, whether it is the estate of a living or 
deceased person. Before conducting an auction as 
m "estate sale", the majority of items in the sale 
must come from the estate of the living or de- 
ceased person(s). Other items not related to or in 
an estate may be sold with an estate if specifically 
disclosed at or before the time of the auction. 

(c) It shall be a violation of these Rules to 
advertise an item, either real or personal, as 
"absolute" or "without reserve" if the item is 
subject to confirmation, minimum bid, or any 
other condition of sale. Before advertising an 
auction as absolute or without reserve, the majori- 
ty of items in the sale must be sold absolute or 



without reserve. Items that are not absolute may 
be included in the auction provided they are 
specifically designated as such in all announce- 
ments or advertisements. 

(d) It shall be a violation of these Rules to 
advertise any auction using such descriptive words 
as "Urgent", "Emergency", "Distress" or any 
other word which connotates liquidation of assets 
or that the buyers will, for some extraordinary 
reason, be in a position to reap some unusual 
bargain without specifically disclosing, in the 
written advertisement, the reason that the sale is 
"urgent", the nature of the "emergency" or the 
cause of the "distress", etc. 

(e) It shall be a violation of these Rules to: 

(1) Reference the U.C.C. or any other 
uniform act or federal or state law in 
any advertisement unless such act or 
law is required, by law, to be refer- 
enced; 

(2) Reference or mention any federal, state 
or local agency or commission unless 
specifically required by law to do so or 
unless prior written approval is received 
from such agency; or 

(3) Adv e rtis e — for sol e — items — whioh — the 
auction ee r doe s not actually plan to 
off e r for sale at th e advortioed auction 
Otherwise connote that the auction is 
under the auspices of. at the direction 
of or required by federal or state law or 
act or a federal, state or local agency or 
commission and that the buyers will, 
for some legal or governmental reason. 
be in a position to reap some unusual 
bargain. 

(f) It shall be a violation of these Rules to 
advertise for sale items which the auctioneer/firm 
does not actually plan to offer for sale at the 
advertised auction. 

(g} (f) It shall be a violation of these Rules for 
an auctioneer or auction firm to permit its name or 
license number to appear on any advertisement for 
an auction without reviewing the contents of the 
advertisement prior to its publication to ascertain 
its compliance with applicable law and ruloo Rules . 



Statutory Authority G. S. 
85B-8(a)(4). 



85B-1; 85B-3(f); 



.0603 SALE PROCEEDS, ACCOUNTING 
AND ESCROW ACCOUNTS 

(a) Each payment made payable to the auction- 
eer/firm in which any portion belongs to others^ 
and which are not disbursed to the seller on auc- 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



844 



PROPOSED RULES 



tion day, must be deposited in an escrow account 
for the benefit of the owner or seller of such 
property within three business days after receipt of 
same. 

(b) Any licensee who disburses any funds on 
auction day shall prepare a receipt or settlement 
statement in compliance with G.S. 85B-7.I(a) and 
maintain records in compliance with G.S. 85B- 
7.1(b). 

(c) {b) Every auctioneer/firm that does not 
disburse all funds to the seller on auction day shall 
establish and maintain a separate bank account 
designated as "Custodial Account for Sellers 
Proceeds" or some similar identifying designation, 
to disclose that the depositor is acting as a 
fiduciary and that the funds in the account are trust 
funds. 

(d) (e) Such custodial accounts for sellers 
proceeds must be established and maintained in 
banks or savings and loan associations located in 
the State of North Carolina whose deposits are 
insured by the Federal Deposit Insurance 
Corporation, or comparable state recognized 
insurance agency or program. 

(e) (d) The Custodial Account for Sellers shall 
be drawn on only for payment of: 

(1) the net proceeds to the seller, or to any 
person that the auctioneer/firm knows is 
entitled to payment; 

(2) to pay lawful charges against the 
property which the auctioneer/firm shall 
in its capacity as agent, be required to 
pay; and 

(3) to obtain any sums due the 
auctioneer/firm as compensation for its 
services. 

£f} <«) In the event of a dispute between the 
seller and buyer of goods or property or between 
the licensee and any person in whose name trust or 
escrow funds are held, the licensee shall retain 
said monies in his trust or escrow account until he 
has obtained a written release from the parties 
consenting to its disposition or until disbursement 
is ordered by a court of competent jurisdiction. 

(g) (I) Each auctioneer/firm shall keep such 
accounts and records as will disclose at all times 
the handling of funds in such Custodial Accounts 
for Sellers Proceeds. Accounts and records must 
at all times disclose the names of buyers and the 
amount of purchase and payment from each, also, 
the names of the sellers and the amount due and 
payable to each from funds in the Custodial Ac- 
count for Sellers Proceeds. All records and 
accounts related to an individual seller shall be 
delivered to the seller within 14 days of settlement . 



(h) (g) All trust or escrow account records and 
records of disbursement shall be available for 
inspection by the Commission or its duly autho 
riz e d — roproBontativo designated agent, without 
advance notice, and copies shall be provided to the 
Commission upon request. 

Statutory Authority G.S. 85B-3(f); 85B-7.1; 
85B-8(a). 

.0604 CONTRACTS 

All written agreements for auctions and registra- 
tion, sales and accounting records will be main- 
tained at the site during the conduct of the auction 
and, upon request, will be made available to the 
Commission or its designated agent. 

Statutory Authority G.S. 85B-7. 

.0605 BroOING 

No auctioneer/firm shall bid on items in a sale he 
is conducting or procure such a bid without the 
intent to purchase the item. In any auction where 
the auctioneer/firm bids on items in a sale being 
conducted by such auctioneer/firm or such auction- 
eer/firm procures such a bid, the auctioneer shall 
announce such bidding in advance of the sale. 

Statutory Authority G.S. 25-2-328(4); 85B-3(f). 

SECTION .0700 - RECOVERY FUND 

.0701 APPLICATIONS 

All verified applications will be served upon the 
Commission in accordance with the procedures set 
forth in G.S. lA-1, Rule 4(J). 

Statutory Authority G. S. 85B-4. 2. 

CHAPTER 40 - BOARD OF OPTICIANS 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Opticians 
intends to amend repeal rules cited as 21 NCAC 
40 .0314 and .0319. 

1 he proposed effective date of this action is 
December 1, 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on October 17, 1994 at the Auditorium ofNC 



845 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



PROPOSED RULES 



Medical Society Bldg., 222 N. Person Street. 
Raleigh. NC 27601. 

Jxeasonfor Proposed Action: 

21 NCAC 40 .0314 - To change apprenticeship 

training program. 

21 NCAC 40 .0319 - To establish procedures for 

examination applicants from other states. 

Comment Procedures: Interested persons may 
present statements, orally and in writing, at the 
public hearing or in writing prior to the hearing by 
mail or hand delivery addressed to NC State Board 
of Opticians, 222 N. Person St. , Suite 102, PO 
Box 25336, Raleigh, NC 27611-5336. 

SECTION .0300 - QUALIFICATIONS: 
APPLICATIONS: AND LICENSING 

.0314 APPRENTICESHIP AND INTERNSHIP 
REQUIREMENTS: REGISTRATION 

(a) Each apprentice or intern entering the ap- 
prenticeship or internship shall register with the 
Board and be issued a certificate of registration. 
Registration of the apprenticeship automatically 
expires on the first day of July of each year, and, 
in order for the apprenticeship to continue, regis- 
tration must be renewed each succeeding July 1 
until the apprenticeship is completed. If the 
apprenticeship or internship is to be supervised by 
an ophthalmologist or optometrist, the supervisor 
shall provide a statement in which he agrees to 
abide by the same requirements as would an 
optician providing the same training. 

(b) Part-time work or work as an optical sales- 
man or consultant shall not apply toward comple- 
tion of apprenticeship or internship. 

(c) An applicant, through apprenticeship or 
internship^ shall have received his training by 
working full time, defined as a minimum of 35 
hours per week, under the supervision of a li- 
censed optician, ophthalmologist, or optometrist 
following a curriculum approved by the Board. 

(d) The curriculum for the a pprentice shall 
include an optical curriculum certification pro- 
gram, in a North Carolina community college, and 
the satisfactory completion of the program shall be 
required. The lecture and laboratory time spent in 
a community college in this program shall be 
credited as part of the a pprenticeship period and of 
its minimum of 35 hours per week. 

{e} ^ No more than two persons, whether 
apprentices or interns or a combination, may be 



trained by an optician, ophthalmologist, or optom- 
etrist at the same time. 

ifi {«) An apprentice or intern shall be credited 
with training time only from the date of registra- 
tion with the Board as an apprentice or intern. 
The apprenticeship or internship may not be 
interrupted for more than 12 months at the time. 

(g) (^ When registering to serve a six month 
internship, the applicant must have completed the 
three and one-half years of apprenticeship as 
required by G.S. 90-240(a)(2) and (3) or have 
completed the course of training required by G.S. 
90-240(a)(l). 

(g) Th e Board shall moke availabl e to approntio 
oo a list of Board approv e d training oours e s which 
th e Board r e oommondo that appr e ntic e s tak e as 
b e ing of ofloiotano e to th e m in pr e paration for the 
examination for licenour e . 

Statutory Authority G.S. 90-239; 90-240; 90-243; 
90-249. 

.0319 APPLICANTS FROM OTHER STATES 

(a) An out of stat e applicant seeking licensure in 
North Carolina under G.S. 90-24 1(a) shall tender 
an application pr e par e d by him to the Board and in 
oonn e otion with sam e ohall furnish accompanied by 
affidavits from two persons with whom be the 
a pplicant worked as an optician for the previous 
four years. In addition, fee the a pplicant shall 
furnish written — s tat e m e nts affidavits from two 
qualifi e d licensed refractionists, either ophthalmol- 
ogists or optometrists, under oath that fee the 
a pplicant has satisfactorily filled feis the 
refractionists' prescriptions for both spectacle 
lenses and contact lenses and practiced the 
profession of opticianry for four years in -tfeat 
another state immediately prior to the application. 
Any application filed by an applicant seeking 
licensur e pursuant to G.S. 90 2 4 1(a) must b e fil e d 
with th e Board within 90 days aft e r ootablishm e nt 
of rooideno e in North Carolina. 

(b) An out of stat e applicant under G.S. 90- 
241(a) shall be required to take the contact lens 
portion of the examination administered by the 
Board, Board unless ««efe the applicant docum e nts 
that — be — ef — sbe has passed a contact lens 
examination, substantially similar to the confact 
lens portion of the examination administered by the 
Board, administered by the licensing authority in 
the state in which he or sh e the a pplicant is 
licensed, or a national contact lens examination 
approved by the Board. 

(c) An applicant seeking admission to an 
examination under G.S. 90-241 (b) shall tender an 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



846 



PROPOSED RULES 



application to the Board accompanied by affidavits 
from two persons who are licensed, certified or 
otherwise authorized by another state to engage in 
the practice of opticianry and under whom or with 
whom the applicant worked in the other state. The 
application and the affidavits shall describe the 
tasks performed by the applicant in the other state 
and the dates the tasks were performed. 

(d) An application under G.S. 90-241 (a) and (h) 
must be filed with the Board not more than 90 
days following the termination of the applicant's 
out-of-state opticianry work for which the 
applicant claims credit. 

Statutory Authority G.S. 90-237; 90-239; 90-241; 
90-249. 

TITLE 25 - OFFICE OF STATE 
PERSONNEL 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the State Personnel Commission 
intends to amend rule cited as 25 NCAC 11 . 2005. 

1 he proposed effective date of this action is 
December 1, 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on October 13, 1994 at the Community 
Colleges Board Room, Caswell Building, 200 West 
Jones Street, Room 179, Raleigh, North Carolina 
27603. 

MXeason for Proposed Action: To clarify the 
amount of time spent in the trainee progression to 
the first six months and to correct an unintentional 
omission of the word "not". 

L^omment Procedures: Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 
by mail addressed to: Patsy Smith Morgan, 116 W 
Jones Street, Raleigh, North Carolina 27603. 

CHAPTER 1 - OFFICE OF STATE 
PERSONNEL 

SUBCHAPTER II - SERVICE TO LOCAL 
GOVERNMENT 

SECnON .2000 - APPOINTMENT AND 
SEPARATION 



.2005 SEPARATION 

Separation occurs when an employee leaves the 
payroll for reasons indicated in this Rule or be- 
cause of death. Employees who have acquired 
permanent status will not be subject to involuntary 
separation or suspension except for cause or 
reduction-in-force. 

(1) Resignation or Retirement. An employee 
may terminate his services with the agen- 
cy by submitting a resignation or request 
for retirement to the appointing authority. 
It is expected that an employee will give 
at least two weeks notice prior to his last 
day of work. 

(2) Dismissal. Dismissal is involuntary 
separation for cause, and shall be made 
in accordance with the provisions of the 
Policy on Suspension and Dismissal. 

(3) Reduction-in-Force. For reasons of 
curtailment of work, reorganization, or 
lack of funds the appointing authority 
may separate employees. Retention of 
employees in classes affected shall be 
based on systematic consideration of type 
of appointment, length of service, and 
relative efficiency. No permanent em- 
ployee shall be separated while there are 
emergency, intermittent, temporary, 
probationary, or trainee employees in 
their first six months of the trainee pro- 
gression serving in the same or related 
class, unless the permanent employee is 
not willing to transfer to the position held 
by the non-permanent employee, or the 
permanent employee does not have the 
knowledge and skills required to perform 
the work of the alternate prosition within 
a reasonable f)eriod of orientation and 
training given any new employee. A 
permanent employee who was separated 
by reduction-in-force may be reinstated at 
any time in the future that suitable em- 
ployment becomes available. The em- 
ployer may choose to offer employment 
with a probationary appointment. The 
employee must meet the current mini- 
mum education and experience standard 
for the class to which he is being 
appointed. 

(4) Voluntary Resignation Without Notice. 
Any employee voluntarily terminates 
employment by foiling to report to work 
without giving written or verbal notice to 
the employing agency. Such a failure 
shall be deemed to be a voluntary 



847 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



PROPOSED RULES 



resignation from employment without 
notice when the employee is absent 
without approved leave for a period of at 
least three consecutive, scheduled 
workdays. Separation pursuant to this 
policy should not occur until the 
employing agency has undertaken 
reasonable efforts, to locate the employee 
and determine when or if the employee is 
intending to return to work. This 
provision also applies when the employee 
is absent for at least three consecutive, 
scheduled workdays, has been instructed 
verbally or in writing of a specific 
manner of reporting by management, and 
does not report in to the appropriate 
supervisory personnel on a regular basis 
satisfectory to the employing agency. 
Such separations as described in this 
Subparagraph are voluntary separations 
from agency employment and create no 
right of grievance or appeal pursuant to 
the State Personnel Act (G.S. Chapter 
126). 
(5) Separation Due to Unavailability When 
Leave is Exhausted. An employee may 
be separated on the basis of unavailability 
when the employee becomes or remains 
unavailable for work after all applicable 
leave credits and benefits have been 
exhausted and agency management does 
not grant a leave without pay for reasons 
deemed sufficient by the agency. Such 
reasons include but are not limited to, 
lack of suitable temporary assistance, 
criticality of the position, budgetary 
constraints, etc. Such a separation is an 
involuntary separation, and not a 
disciplinary dismissal as described in 
G.S. 126-35, and may be grieved or 
appealed. Prior to separation the 
employing agency shall meet with or at 
least notify the employee in writing, of 
the proposed separation, the efforts 
undertaken to avoid separation and why 
the efforts were unsuccessful. The 
employee shall have the opportunity in 
this meeting or in writing to propose 
alternative methods of accommodation. 
If the proposed accommodations are not 
possible, the agency must notify the 
employee of that fact and the proposed 
date of separation. If the proposed 
accommodations or alternative 
accommodations are being reviewed, the 



agency must notify the employee that 
such accommodations are under review 
and give the employee a projected date 
for a decision on this. Involuntary 
separation pursuant to this policy may be 
grieved or appealed. The employing 
agency must also give the employee a 
letter of separation stating the specific 
reasons for the separation and setting 
forth the employee's right of appeal. 
The burden of proof on the agency in the 
event of a grievance is not just cause as 
that term exists in G.S. 126-35. Rather, 
the agency's burden is to prove that the 
employee was unavailable and that the 
agency considered the employee's 
proposed accommodations for his 
unavailability and was unable to make the 
proposed accommodations or other 
reasonable accommodations. Agencies 
should make efforts to place an employee 
so separated pursuant to this policy when 
the employee becomes available, if the 
employee desires, consistent with other 
employment priorities and rights. 
However, there is no mandatory 
requirement placed on an agency to 
secure an employee, separated under this 
policy, a position in any agency. 

Statutory Authority G.S. 126-4. 



NORTH CAROLINA REGISTER 



September 1, 1994 



848 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



COMMERCE 

Energy 

4 NCAC 12C .0007- Institutional Conservation Program 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol 

14A NCAC 9H .0305 - Rotation, Zone, Contract, and Deviation from System 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Departmental Rules 

15 A NCAC IJ .0303 - Filing of Required Supplemental Information 

Agency Revised Rule 
15A NCAC IJ .0701 - Public Necessity: Health: Safety and Welfare 

Agency Revised Rule 

Agency Revised Rule 
ISA NCAC IL .0302 - General Provisions 

Agency Revised Rule 
15A NCAC IL .0602 - Public Health Need 

Agency Re\'ised Rule 

Environmental Health 

ISA NCAC 18A .2610 - Storage: Handling: and Display of Food 

Agency Re\'ised Rule 
ISA NCAC 18A .2645 - Requirements for Limited Food Service Establishments 

Agency Revised Rule 
ISA NCAC 18C .0202 - Removal of Dissolved Matter and Suspended Matter 

Agency Revised Rule 
ISA NCAC 18C .0203 - Public Well Wjter Supplies 

Agency Revised Rule 
ISA NCAC 18C .0402 - Vhter Supply Wells 

Agency Revised Rule 
ISA NCAC 18C .0403 - Surface Wbter Facilities 

Agency Revised Rule 
ISA NCAC 18C .0404 - Witer Treatment Facilities 

Agency Revised Rule 
ISA NCAC 18C .0405 - Storage of Fmished Water 

Agency Revised Rule 



RRC Objection 06/16/94 

07/14/94 

Eff. 08/16/94 



RRC Objection 
Obj. Removed 



07/14/94 
07/14/94 



RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



06/16/94 
06/16/94 
06/16/94 
06/16/94 
07/14/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 



RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 



849 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



RRC OBJECTIONS 



15A NCAC 18C .0710 - Other Mbter Treatment Plants RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C .0711 - Alternative Filtration Treatment Technologies RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 0714 - Pilot Plant Studies RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15 A NCAC 18C .0802 - Capacities: Determining Peak Demand RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

ISA NCAC 18C .0803 - Capacities: Determining Total Volume RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C .0805 - Capacities: Elevated Storage RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 1002 - Disinfection of Wells RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 1004 - Disinfection of Filters RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 1102 - Authorized Persons Within Watershed Area RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 1209 - Untreated Domestic Sewage or Industrial Wistes RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 1406 - Control of Treatment Process RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 1511 - Concentration of Iron RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C .1512 - Concentration of Manganese RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C .1533 - Total Trihalomethanes Sampling/ Analysis: < 10,000 RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 



Environmental Management 



15A NCAC 2D .0101 - Definitions 

Agency Revised Rule 
15A NCAC 2D . 0932 - Gasoline Truck Tanks and Vapor Collection Systems 

Agency Revised Rule 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



Wildlife Resources and Water Safety 



15 A NCAC lOD .0002 - General Regulations Regarding Use 

Agency Revised Rule 
15 A NCAC lOH .0101 - License to Operate 

Agency Revised Rule 
15A NCAC 101 .0001 - Definitions and Procedures 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 



06/16/94 
06/16/94 
06/16/94 
06/16/94 
08/18/94 



HUMAN RESOURCES 
Childrens Services 



10 NCAC 411 . 0306 - When Abuse, Neglect or Dependency is Found 

Agency Revised Rule 
10 NCAC 41J .0501 - When to Complete a Risk Assessment 

Agency Revised Rule 



RRC Objection 07/14/94 

Obj. Removed 07/14/94 

RRC Objection 07/14/94 

Obj. Removed 07/14/94 



Facility Services 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



850 



RRC OBJECTIONS 



10 NCAC 3D .0913 - Permit 

Agency Revised Rule 
10 NCAC 3E .0201 - Building Code Requirements 

Agency Revised Rule 
10 NCAC 3E .0206 - Elements and Equipment 

Agency Revised Rule 
10 NCAC 3R .4206 - Accessibility 

Agency Revised Rule 
10 NCAC 3U .0713 - Staff/Child Ratios for Medium and Large Centers 

Agency Revised Rule 

Mental Health, Developmental Disabilities and Substance Abuse Services 

10 NCAC 45G .0139 - Security Requirements Generally 
Agency Revised Rule 

Mental Health: General 

10 NCAC 14C . 1148 - nomas S. Community Services 
Agency Revised Rule 

Mental Health: MR Centers 

10 NCAC 16A .0402 - Explanation of Terms 
Agency Revised Rule 

10 NCAC 16A .0403 - Designation Procedures 

Agency Revised Rule 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board 

24 NCAC 5 .0302 - Designation Process 
Agency Revised Rule 

INSURANCE 

Multiple Employer Welfare Arrangements 

11 NCAC 18 .0019 - 'Qualified Actuary"; Maximum Net Retention Filing 

Agency Revised Rule 
11 NCAC 18 .0021 - Certification of Reserves Filing 
Agency Revised Rule 

JUSTICE 

Criminal Information 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



07/14/94 
07/14/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 



06/16/94 
06/16/94 



06/16/94 
06/16/94 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



RRC Objection 
Obj. Removed 



06/16/94 
06/16/94 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



12 NCAC 4E .0402 - Certification and Recertification ofDCI Operators 
Agency Revised Rule 

Criminal Justice Education and Training Standards 

12 NCAC 9B .0203 - Admission of Trainees 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



07/14/94 
07/14/94 



07/14/94 
07/14/94 



851 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



RRC OBJECTIONS 



12 NCAC 9B .0208 - Basic Training - Probation/ Rirole Officers 
Private Protective Services 

12 NCAC 7D .1101 - Definitions 

Agency Revised Rule 
12 NCAC 7D .1104 - Training and Supervision Required in Level Three 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 



RRC Objection 07/14/94 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



Acupuncture Licensing Board 

21 NCAC 1 .0102 - Req./Vhiver/Qualijications /Licensure Detailed/G.S. 90-455 RRC Objection 07/14/94 
Agency Revised Rule Obj. Removed 07/14/94 

Board of Nursing 

21 NCAC 36 .0211 - Examination 

Agency Revised Rule 
21 NCAC 36 .0218 - Licensure Without Examination (By Endorsement) 

Agency Revised Rule 

Professional Counselors 

21 NCAC 53 . 0103 - Purpose of Organization 

Agency Repealed Rule 
21 NCAC 53 .0104 - Organization of the Board 

Agency Repealed Rule 
21 NCAC 53 .0201 - Supervision 

Agency Repealed Rule 
21 NCAC 53 .0303 - Wyrk Experiences 

Agency Repealed Rule 
21 NCAC 53 .0305 - Exemption from Academic Qualijication 

Rule Withdrawn by Agency 
21 NCAC 53 .0503 - Renewal Fee 

Agency Revised Rule 

Therapeutic Recreation Certification 

21 NCAC 65 .0004 - Academic - TRS Examination 

REVENUE 

Sales and Use Tax 

17 NCAC 7B . 2608 - Plumbing: Heating: Air Cond/Elec Contractors: Purchases RRC Objection 05/19/94 

Rule Returned to Agency 06/16/94 

17 NCAC 7B .2609 - Plumbing: Heating: Air Cond/Bec Contractors: Sales RRC Objection 05/19/94 

Rule Returned to Agency 06/16/94 

17 NCAC 7B .5462 - White Goods Disposal Tax Report Form: E-500W RRC Objection 05/19/94 

Rule Returned to Agency 06/16/94 

17 NCAC 7B .5464 - Ice Certificate Form: E-599Y RRC Objection 05/19/94 

Rule Returned to Agency 06/16/94 



RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 




06/16/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 



RRC Objection 08/18/94 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



852 



RRC OBJECTIONS 



TRANSPORTATION 
Division of Motor Vehicles 

19A NCAC 3B .0703 - Requirements for Third Party Testers 

Agency Revised Rule 
19A NCAC 31 .0307 - Courses of Instruction 

Agency Revised Rule 
19A NCAC 31 .0501 - Requirements 

Rule Withdrawn by Agency 

Agency Re-Submits Rule 

Agency Re\ised Rule 
19A NCAC 3J .0501 - Requirements 

Agency Revised Rule 



RRC Objection 


07/14/94 


Obj. Removed 


07/14/94 


RRC Objection 


06/16/94 


Obj. Removed 


06/16/94 




06/16/94 


RRC Objection 


07/14/94 


Obj. Removed 


07/14/94 


RRC Objection 


07/14/94 


Obj. Removed 


07/14/94 



853 9:11 NORTH CAROUNA REGISTER September 1, 1994 



CONTESTED CASE DECISIONS 



Ihis Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTHt CITATION 



ADMINISTRATION 

North Carolina Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Rayv^n Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Brancblarvl, Inc. 

Alcoholic Beverage Control Corrmi. v. Peggy Sutton Walters 

Russell BemanJ Speller d/b/a Cat's Disco v. Alcoholic Bev Cll Cormn. 

Alcoholic Beverage Control Comm. v. Branchland, Inc. 

Edward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 

Robert Kovalaske, Nick Pikoulas, Joseph Marshbuni, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Lyim Ann Garfagna v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limite, Inc. 



, COLAP Enterprises, Inc. 

Mitch's Tavern, Inc. 
. Ms. Lucy Jarrell Powell 

Daphne Arm Harrell 



Alcoholic Beverage Control Conmi. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Mr. &. Mrs. Josh Bullock Jr. v. Alcoholic Beverage Control Conmi. 

Jerome Crawford v. Alcoholic Beverage Control Commission 

Lawrence Mungin v. Alcoholic Beverage Control Cormnission 

Alonza Mitchell v. Alcoholic Beverage Control Cormnission 

Roy Dale Cagle v. Alcoholic Beverage Control Commission 

COMMERCE 



94 DOA 0242 



West 



04/13/94 



93 ABC 0719 


Gray 


03/02/94 




93 ABC 0793 


Nesnow 


04/11/94 




93 ABC 0892 


Morgan 


06/03/94 




93 ABC 0906 


Mann 


03/18/94 




93 ABC 0937 


Morrison 


03/07/94 




93 ABC 0993 


Morgan 


06/03/94 




93 ABC 1024 


West 


03/03/94 




93 ABC 1029 


Gray 


03/04/94 




93 ABC 1057 


Bee ton 


04/21/94 




93 ABC 1481 


Gray 


07/19/94 




93 ABC 1485 


Maim 


03/11/94 




94 ABC 0060 


Nesnow 


06/07/94 




94 ABC 0064 


Gr^ 


07/26/94 




94 ABC 0070 


Morgan 


06/06/94 




94 ABC 0115 


Nesnow 


07/18/94 




94 ABC 0124 


Morgan 


06/06/94 




94 ABC 0125 


Morgan 


06/06/94 




94 ABC 0149 


Chess 


08/08/94 




94 ABC 0257 


Morrison 


07/28/94 


9; 11 NCR 870 


94 ABC 0260 


West 


07/13/94 





Savings Institutions Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 



93 COM 1622 Chess 



94 DOC 0252 



03/01/94 



Morrison 03/21/94 



Joseph Guernsey & I^rents, Robert Guems^ & Dolores Guernsey 
v. Pitt County Hospital Eastern Radiologists 

Crime Victims Compensation Commission 

Mae H. McMillan v. Crime Victims Compensation Commission 
James Hugh B^nes v. Crime Victims Compensation Commission 
Ross T. Bond v. Victims Compensation Commission 
James A. Canady v. Crime Victims Compensation Commission 
Virginia Roof v. Department of Crime Control & Public Safety 
Karen C. Tilghman v. Crime Victims Compensation Commission 



94 CPS 0413 



Gray 



07/11/94 



92 CPS 1328 


Morgan 


08/11/94 






93 CPS 0801 


West 


03/28/94 


9:2 NCR 


114 


93 CPS 1104 


West 


04/21/94 






93 CPS 1108 


Gray 


03/28/94 






93 CPS 1347 


Nesnow 


03/24/94 






93 CPS 1608 


Reilly 


05/17/94 


9;6 NCR 


407 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



854 



CONTESTED CASE DECISIONS 



AGENCY 



Rosemary Taylor v. Crime Victims Compensation CommiBsioa 
Violet E. Kline v. Crime Victims Compensation Commission 
James Benlon v. Crime Victims Compensation Commission 
Percy Clark v. Crime Victims Compensation Commission 
J. Richard Spencer v. Crime Victims Compensation CommiBsion 
Albert H. Walker v. Crime Victims Compensation Commission 
Barbara Hendeison v. Crime Victims Compensation Commission 
Shirley Handsome v. Crime Victims Compensation Commission 
Geor^eann Young v. Crime Victims Compensation Comimssion 
Lawrence L. Tyson v. Crime Victims Compensation Commission 
Lyman L. Chapman v. Crime Victims Compensation Commission 
Douglas and Virginia Wilson v. Crime Victims Compensation Comm. 
Michelle L. Wilcox v. Crime Victims Compensation Commission 
Michael G. Low v. Crime Victims Compensation Commission 
Hazel Jarvis v. Victims Compensation Commission 
Mary E. Haskins v. Crime Victims Compensation Commission 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


AU 


DECISION REGISTER CITATION 


93 CPS 1626 


Nesnow 


05/25/94 


93 CPS 1670 


Morgan 


06/13/94 


94 CPS 0034 


Chess 


06/14/94 


94 CPS 0127 


Reilly 


04/19/94 


94 CPS 0157 


Chess 


06/14/94 


94 CPS 0229 


Reilly 


08/11/94 


94 CPS 0259 


Morrison 


04/07/94 


94 CPS 0286 


Gray 


04/28/94 


94 CPS 0292 


Reilly 


04/18/94 


94 CPS 0368 


Gray 


04/26/94 


94 CPS 0415 


Chess 


06/02/94 


94 CPS 0417 


Reilly 


06/07/94 


94 CPS 0467 


Reilly 


06/07/94 


94 CPS 0524 


Morrison 


06/13/94 


94 CPS 0664 


Chess 


07/29/94 


94 CPS 1406 


Gray 


03/17/94 



ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Bobty Stallings v. Environment, Health, and Natural Resources 
William R Shaver, R. McKinnon Morrison m. Till Ray, Dr. Wesley 

C. Ray, Douglas W Furr, Catherine H. Furr & Caldwell Creek Farm, Inc. 

V. EHNR-State of North Carolina 
Ron D. Graham, Suzanne C. Graham v. Robert Cobb, MeckJenbuig Cty 
Patricia D. Solomon v. Macon County Health Department 
Elbert L. Winslow v. EHNR/Guilford Cty Health Dept. & Guilford Cty 

Piarmiqg &. Zoning Board 
Kalhryn A. Whitley v. Macon County Health Department 
Brook Hollow Estates v. Envirormient, Health, & Natural Resources 
Oceanfront Court, David C. Gagnon v. Environment, Health, & Nat. Res. 
Sam's Club #8219 v. Mecklenburg County Health Department 
Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept. 
Tri-Circuis, Inc. v. Etrvirormient, Health, & Natural Resources 



90 EHR 0612 


Morgan 


08/11/94 


93 EHR 0452 


Morgan 


08/11/94 


93 EHR 1017 


Becton 


05/31/94 


93 EHR 1777 


West 


05/23/94 


94 EHR 0086 


Chess 


07/13/94 


94 EHR 0088 


West 


07/13/94 


94 EHR 0093 


West 


06/03/94 


94 EHR 0210 


Chess 


06/21/94 


94 EHR 0329 


Nesnow 


06/15/94 


94 EHR 0500 


Gray 


06/10/94 


94 EHR 0601 


Morrison 


06/30/94 



9:7 NCR 496 



CoasUU Management 



Roger Fuller v. EHNR, Div. of Coastal Mgmt & Enviroimiental Mgmt 
Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt 
John R. Hooper v. EHNR, Div./Coastal Mgmt & Bird's Nest I^rtnership 
Gary E. Montalbine v. Division of Coastal Management 
F^l^-Midgett t^rtnemhip v. Coastal Resources Commission 



89 EHR 1378'^ 


Gray 


04/07/94 


90 EHR 0017** 


Gray 


04/07/94 


90 EHR 0455 


Morgan 


08/11/94 


93 EHR 1792 


Nesnow 


03/21/94 


94 EHR 0315 


Gray 


06/01/94 



Environmental Health 



Jane C. O'Mallcy, Melvin L. Cartwright v. EHNR & District HIth Dept 

F^quotank-ftrquimans-Camden-Chowan 
Henry Lee Bulluck v. Nash County Health Department & EHNR 
Environment. Health. &. Natural Res. v. Clark Harris & Jessie Lee Harris 
Richard F. Ebersold v. Jackson County Health Department & EHNR 
Sidn^ S. Tate Jr. v. Dept. of Envirormient, Health, & Natural Resources 
Scotland Water Co., Laurin Lakes v. Envirormient, Health, & Nat. Res. 
H.A. Lentz v. Department of Envirormient, Health, & Natural Resources 
Floyd Berm Williams v. Dept. of Environment, Health, & Nat. Res. 



91 EHR 0838 


Bee ton 


04/06/94 


93 EHR 0348 


Moigan 


07/22/94 


93 EHR 0924 


Bee ton 


03/03/94 


93 EHR 1391 


Chess 


06/24/94 


94 EHR 0005 


Reilly 


05/24/94 


94 EHR 0200 


Nesnow 


04/27/94 


94 EHR 0235 


Nesnow 


07/19/94 


94 EHR 0333 


Reilly 


05/18/94 



Environmental Management 



David Springer v. Dept. of Envirormient, Health, & Natural Resources 
Petroleum Installation Equipment Co., Inc. v. Env. , Health & Nat. Res. 
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 



92 EHR 1797 


Morgan 


05/19/94 


93 EHR 0531 


Chess 


03/21/94 


93 EHR 1030 


Becton 


03/21/94 



Consolidated Cases. 



855 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Land Resources 

Wallace B. Clayton, Dr. Marehall Redding v. Div. of Land Resources 
Town of Kernemville (LQS 93-053) v. Environment, Health, &. Nat. Res. 
Royce Perry, Paul Perry v. Dept. of Environment, Health, & Natural Res. 

Marine Fisheries 

Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 
Larry J. Batson v. Division of Marine Fisheries 
David W. Oglesby v. Division of Marine Fisheries 
David E. Oglesty v. Division of Marine Fisheries 
James Goodman v. EHNR, Division of Marine Fisheries 

SoUd Waste Management 

Roger Sessoms v. EHNRV Asbestos Hazaid Management Branch 
Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 
Herbert Jenkins, Jr, Lindwood Earl Tripp, Willie Warren Tripp, Mary 
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 
Division, and East Carolina Environmental, Inc., yVldington Environmental 
Inc., et al. 



93 EHR 1407 


Morgan 


08/09/94 




93 EHR 1781 


Chess 


06/29/94 


9:8 NCR 581 


94 EHR 0525 


Gray 


07/01/94 





93 EHR 0394 Gray 

93 EHR 0857 Morgan 

93 EHR 0930* West 

93 EHR 0931'* West 

94 EHR 0035 Nesnow 



93 EHR 0951 
93 EHR 1045 



Gray 
Morrison 



04/11/94 
07/22/94 
07/25/94 
07/25/94 
07/18/94 



03/28/94 
04/06/94 



9:10 NCR 758 
9:10 NCR 758 
9:9 NCR 660 



9:3 NCR 214 



HUMAN RESOURCES 



Helen J. Walls, Walls \bung World v. Department of Human Resources 
Brenda C. Robinson v. Department of Human Resources 
Betty Rhodes v. Department of Human Resources 

Distribution Child Support 

Mona L. Stanback v. DHR, Div/Social Svcs, Child Support Enf. Section 
Jacbell D. F^ker v. Department of Human Resources 



93 DHR 0965 

94 DHR 0365 
94 DHR 0501 



93 DCS 0969 
93 DCS 0371 



Morgan 08/11/94 

West 06/01/94 

Morrison 06/02/94 



Morgan 
Morgan 



08/02/94 
07/14/94 



Division of Child Development 

Judith Fridl^ v. Div. of Child Development/ Abuse/Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Lautcen Holt, lD«'26-0-00037 v. DHR, Div. of Child Development 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Scotfs Lwing Day Cart & Nursery, Mrs. Willie L. Scott v. DHR 

Belinda K. Mitchell v. Human Resources, Div. of Child Development 

Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources 

Facility Services 

Laura Harvey Williams v. DHR, Division of Facility Services 
Presbyterian-Orthopaedic Hospital v. Department of Human Resources 
Judy Hoben Wallace v. Department of Human Resources 
Lowell Statford v. Department of Human Resources 

Certificate of Need Section 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1549 


Beclon 


07/13/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0106 


Nesnow 


06/29/94 


94 DHR 01 19 


ReiUy 


06/30/94 


94 DHR 0168 


Nesnow 


03/23/94 



93 DHR 0391 


Morgan 


08/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 0935 


Gray 


05/23/94 


93 DHR 1381 


Gray 


04/15/94 



Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. 

Department of Human Resources, and Wilmington Perfusion 

Corp. and Howard F. Marks, Jr., M.D. 
Cape Pear Memorial Hospital v. Department of Human Resources 
The Carrolton of Fayetleville, Inc. v. Department of Human Resources 

and 
Highland House of ftyetlcville, Inc. & Richard R. Allen Sr. v. DHR 
The Carrolton of Fayetteville, Inc. v. Department of Human Resources 

arKl 
Highland House of Fayetteville, Inc. & Richard R. Allen Sr. v. DHR 



93 DHR 0746 Morgan 04/11/94 



93 DHR 1552 Reilly 08/15/94 

94DHR0197*> Morgan 08/11/94 



94 DHR 0198** Mor^ian 08/11/94 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



856 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Division of Medical Assistance 

J.R , by and through her agenl & Personal Rep., Hank Neal v. DHR 
David Yotl v. Department of Human Resources 

Division of Medical Afisislance v. Catawba Cty Dept. of Social Services 
Lu Ann Leidy, MD/Dorothea Dix Hosp. Child & Youth v. Medical Asais. 

Di^sion of Social Services 

Evelyn Moore v. Department of Human Resources 

Nathaniel Harrell, Annie Hatrell v. Department of Social Services 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1778 


West 


03/04/94 


94 DHR 0448 


Chess 


06/21/94 



94 DHR 0293 
94 DHR 0440 



Reilly 
Gray 



04/15/94 
06/27/94 



Child Support Enforcement Section 

Alfred Bennett v. Department of Human Resources 

Shelton Staples v. Department of Human Resources 

Helen Lee Harvell Jones v. Department of Human Resources 

Dalton I^lton Sr. v. Department of Human Resources 

Colty S. Hughes v. Department of Human Resources 

Gary Eugene Honeycutt v. Department of Human Resources 

Vicki C. Conn v. Department of Human Resources 

Melvin L. Miller Sr. v. Department of Human Resources 

Robert L. Hicks v. Department of Human Resources 

Darryl D. Leedy v. Department of Human Resources 

William Heckstall v. Department of Human Resources 

Luther Hatcher v. Department of Human Resources 

Bryan Jeffrey Cole v. Department of Human Resources 

Anthony E. BuUajd v. Department of Human Resources 

Donald E. Height v. Department of Human Resources 

Dexter L. Chambers v. Department of Human Resources 

Ronald E. Johnson v. Department of Human Resources 

Roger Moore v. Department of Human Resources 

Alvin Lee Martin v. Department of Human Resources 

Robert Young v. Department of Human Resources 

Henry M. Dillaid v. Department of Human Resources 

Antonio Townsend v. Department of Human Resources 

Keith M. Gray v. Department of Human Resources 

Troy E. Pinkney v. Department of Human Resources 

Anthoriy A. Macon v. Department of Human Resources 

Walter Lee Corbett v. Department of Human Resources 

Joseph E. Kemstine v. Department of Human Resources 

Alvin M. Davis v. Department of Human Resources 

Thomas M. Bindwell HI v. Department of Human Resources 

Joe Louis Mayo v. Department of Human Resources 

Bobhy Lewis Smith v. Department of Human Resources 

Louis C. Cade v. Department of Human Resources 

Richard J. Swarm v. Department of Human Resources 

Nash Andrew Newsome v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Jeff A. Taylor v. Department of Human Resources 

Eric G. Sykes v. Department of Human Resources 

Morris Ray Bethel v. Department of Human Resources 

Willie C. Hollis v. Department of Human Resources 

Ernest N. Pruitt Jr. v. Department of Human Resources 

Michael P. McCay v. Department of Human Resources 

Bemadett Cook v. Department of Human Resources 

Lem Person v. Department of Human Resources 

Bobty Lee McCulleis Jr. v. Department of Human Resources 

Randall R. Rhodes v. Department of Human Resources 

Glen Nelson Washington v. Department of Human Resources 

Michael V. Dockery v. Department of Human Resources 

Flcyd E. Bailey v. Department of Human Resources 

Dennis W. Nolan v. E>epartment of Human Resources 

Robert Calvin Cormor v. Department of Human Resources 

James D. Williams v. Department of Human Resources 

Marty Franzen v. Department of Human Resources 



90 CSE 1146 


Morgan 


08/11/94 


91 CSE 0660 


Morgan 


08/11/94 


91 CSE 1183 


Morgan 


08/11/94 


92 CSE 0532 


Morgan 


07/13/94 


92 CSE 1199 


Morgan 


08/10/94 


92 CSE 1207 


Morgan 


08/10/94 


92 CSE 1268 


Morgan 


08/10/94 


92 CSE 1372 


Morgan 


08/10/94 


92 CSE 1591 


Morgan 


08/10/94 


93 CSE 0591 


Morgan 


08/11/94 


93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1082 


Mann 


05/24/94 


93 CSE 1091 


Bccton 


03/30/94 


93 CSE 1094 


Nesncw 


06/13/94 


93 CSE 1110 


Morgan 


08/11/94 


93 CSE 1124 


West 


03/28/94 


93 CSE 1125 


Becton 


03/30/94 


93 CSE 1127 


Bee ton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1135 


Nesnow 


06/13/94 


93 CSE 1139 


Becton 


03/30/94 


93 CSE 1140 


Nesnow 


06/28/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1149 


Gray 


04/26/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1151 


Morgan 


07/15/94 


93 CSE 1152 


Morgan 


08/04/94 


93 CSE 1155 


Morgan 


08/02/94 


93 CSE 1161 


West 


04/19/94 


93 CSE 1162 


Nesnow 


06/16/94 


93 CSE 1166 


Morrison 


06/16/94 


93 CSE 1167 


Reilly 


06/17/94 


93 CSE 1170 


Marm 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1180 


Morgan 


07/15/94 


93 CSE 1181 


Becton 


04/20/94 


93 CSE 1188 


West 


07/11/94 


93 CSE 1191 


Becton 


05/09/94 


93 CSE 1197 


Nesncw 


06/28/94 


93 CSE 1198 


Morgan 


08/02/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1214 


Morrison 


06/16/94 


93 CSE 1215 


Reilly 


06/17/94 


93 CSE 1219 


Nesnow 


06/16/94 


93 CSE 1221 


Morgan 


08/02/94 


93 CSE 1222 


Morgan 


07/15/94 


93 CSE 1227 


Mann 


07/07/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1264 


Morgan 


07/15/94 



857 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Vaughn D. Pearsall v. Department of Human Resources 
Larry D. Dawson v. Department of Human Resources 
McDaniel Teeter Jr. v. Department of Human Resources 
King D. Graham v. Department of Human Resources 
Derek Watson v. Department of Human Resources 
Luther Borden v. Department of Human Resources 
Waller B. Lester v. Department of Human Resources 
Larry Cornelius Smith v. Department of Human Resources 
Robert C. Lee Jr. v. Department of Human Resources 
Sidn^ Ray Tuggle Jr. v. Department of Human Resources 
Michael A. Amos v. Department of Human Resources 
Benjamin McCormick v. Department of Human Resources 
Gregory N. Winl^ v. Department of Human Resources 
Ronald Brown v. Department of Human Resources 
James L. Phillips v. Department of Human Resources 
George Aaron Collins v. Department of Human Resources 
Samuel L. Dodd v. Department of Human Resources 
William A. SelleiB v. Department of Human Resources 
Jerry Mclver v. Department of Human Resources 
Johnny B. Little v. Department of Human Resources 
Kenneth W. Cooper v. Department of Human Resources 
Nathan D. Winston v. Department of Human Resources 
Bobty Charles Coleman v. Department of Human Resources 
Charles W. NorTwod Jr. v. Department of Human Resources 
David L. Terry v. Department of Human Resources 
Audwin Linds^ v. Department of Human Resources 
Steven A. Elmquist v. Department of Human Resources 
Kelvin Dean Jackson v. Department of Human Resources 
Melvin Lewis Griffin v. Department of Human Resources 
Dennis E. Fountain Jr. v. Department of Human Resources 
Mark E. Rogers v. Department of Human Resources 
Edna VonCarmon v. Department of Human Resources 
Ephrom Sparkman Jr. v. Department of Human Resources 
Thomas A. Ayers v. Department of Human Resources 
Daniel Thomas Hefele v. Department of Human Resources 
Gilbert J. Gutierrez v. Department of Human Resources 
Alton D. Johnson v. Department of Human Resources 
Darryl C. Thompson v. Department of Human Resources 
Chester Sanders v. Department of Human Resources 
Rodn^ Guyton v. Department of Human Resources 
Donald W. Clark v. Department of Human Resources 
William E. David Jr. v. Department of Human Resources 
Arthur Lee Carter v. Department of Human Resources 
John J. Gabriel v. Department of Human Resources 
Robert Hayes v. Department of Human Resources 
Clark Anthoity Bryant v. Department of Human Resources 
Timothy D. Evans v. Department of Human Resources 
Billy Eduard Smith v. Department of Human Resources 
Allen D. Terrell v. Department of Human Resources 
Ray C. Moses v. Department of Human Resources 
Mickey Bridget! v. Department of Human Resources 
Bart Ransom v. Department of Human Resources 
William H. Simpson Sr. v. Department of Human Resources 
Clarence J. Gallir^ Jr v. Department of Human Resources 
James D. McCIure Jr v. Department of Human Resources 
Christopher Ivan Smith v. Department of Human Resources 
Douglas L. Cherrix v. Department of Human Resources 
Dwayne Lamonl Thompson v. Department of Human Resources 
Horace Lee Bass v. Department of Human Resources 
Michael Wilder v. Department of Human Resources 
James A. Cephas v. Department of Human Resources 
Edy^ni E. Furr v. Department of Human Resources 
Mark E. Campbell v. Department of Human Resources 
William Ellis v. Department of Human Resources 
Henry A. Harriel Jr. v. Department of Human Resources 
John H. Fortner Jr. v. Department of Human Resources 
Mike Johnson v. Department of Human Resources 
Barriet Easterling v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


AU 


DECISION REGISTER CITATION 


93 CSE 1267 


Becton 


04/20/94 


93 CSE 1273 


Morrison 


07/07/94 


93 CSE 1274 


Morrison 


06/30/94 


93 CSE 1275 


B&cton 


05/18/94 


93 CSE 1283 


Reilly 


06/30/94 


93 CSE 1284 


West 


06/23/94 


93 CSE 1287 


Nesnow 


06/28/94 


93 CSE 1302 


Morrison 


06/30/94 


93 CSE 1303 


Reilly 


06/30/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1308 


West 


07/15/94 


93 CSE 1313 


Moi^an 


08/02/94 


93 CSE 1316 


Becton 


06/14/94 


93 CSE 1318 


Becton 


06/29/94 


93 CSE 1326 


Reilly 


06/17/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1362 


Reilly 


06/30/94 


93 CSE 1363 


West 


06/23/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1365 


Nesnow 


07/07/94 


93 CSE 1368 


Morgan 


08/02/94 


93 CSE 1385 


West 


06/13/94 


93 CSE 1386 


Mann 


05/18/94 


93 CSE 1390 


Morrison 


07/15/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1394 


West 


06/13/94 


93 CSE 1412 


Morgan 


08/02/94 


93 CSE 1414 


Chess 


05/13/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1417 


Morrison 


06/14/94 


93 CSE 1422 


Morgan 


08/04/94 


93 CSE 1431 


Morrison 


06/30/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1435 


Reilly 


06/30/94 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1445 


Moigan 


08/10/94 


93 CSE 1452 


Chess 


05/16/94 


93 CSE 1453 


Mann 


07/07/94 


93 CSE 1455 


Gray 


06/30/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1468 


Becton 


05/24/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1499 


Morgan 


08/02/94 


93 CSE 1500 


Becton 


05/13/94 


93 CSE 1510 


Gray 


07/07/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1520 


Morrison 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1524 


Reilly 


06/17/94 


93 CSE 1537 


Nesnow 


05/19/94 


93 CSE 1540 


Morgan 


08/02/94 


93 CSE 1541 


Morgan 


08/04/94 


93 CSE 1542 


Morgan 


08/02/94 


93 CSE 1544 


Morgan 


08/04/94 


93 CSE 1560 


Mann 


05/18/94 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



858 



CONTESTED CASE DECISIONS 



AGENCY 



Wade A. Burgeas v. Department of Human Resources 
Billy Dale Beaney v. Department of Human Resources 
James E. Wiggins Sr. v. Department of Human Resources 
Tony A. Draughon v. Department of Human Resources 
Timothy J. Jones v. Department of Human Resources 
Randall E. Hunter v. Department of Human Resources 
Cyrus R. Luallen v. Department of Human Resources 
Willie Hawkins v. Department of Human Resources 
B.A. Sellen v. Department of Human Resources 
Alton E. Simpson Jr. v. Department of Human Resources 
Johnr^- T. Usher v. Department of Human Resources 
Tim H. Maxwell v. Department of Human Resources 
Charles Darrell Matthews v. Department of Human Resources 
John William Vance Jr. v. Department of Human Resources 
Bobty R. Sanders v. Department of Human Resources 
Michael S. Rhyncs v. Department of Human Resources 
Brian Gilmore v. Department of Human Resources 
Jesse Jeremy Bullock v. Department of Human Resources 
Ronald E. Loweke v. Department of Human Resources 
Robert D. I^ii<£r v. Department of Human Resources 
Charles F. McKirahan Jr. v. Department of Human Resources 
Bennie E. Hicks v. Department of Human Resources 
Herbert Council v. Department of Human Resources 
Richard Rachel v. Department of Human Resources 
Alan V. Teubert v. Department of Human Resources 
Henry L. Ward Jr. v. Department of Human Resources 
Benjamin J. Stroud v. Department of Human Resources 
Charles Leonard Fletcher v. Department of Human Resources 
Tony A. Miles v. Department of Human Resources 
Dw^ne L. Allen v. Department of Human Resources 
Joe C. Dean v. Department of Human Resources 
\fcmon Bullock v. Department of Human Resources 
Jessie Liles v. Department of Human Resources 
Raymond Scott Eaton v. Department of Human Resources 
Royston D. Blandford HI v. Department of Human Resources 
Michael L. Franks v. Department of Human Resources 
Wanda Jean Lee Daniels v. Department of Human Resources 
Daron Wayne Smith v. Department of Human Resources 
John D. Melton v. Department of Human Resources 
Michael Lynn Jones v. Department of Human Resources 
Richard Eugene Dunn v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1572 


Reilly 


07/07/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1583 


Nesnow 


06/16/94 


93 CSE 1585 


Morgan 


08/02/94 


93 CSE 1586 


Morgan 


08/02/94 


93 CSE 1591 


Becion 


04/20/94 


93 CSE 1592 


Chess 


05/19/94 


93 CSE 1594 


Chess 


06/30/94 


93 CSE 1596 


West 


06/13/94 


93 CSE 1597 


Becion 


05/13/94 


93 CSE 1598 


Nesncw 


07/25/94 


93 CSE 1599 


Nesnow 


06/30/94 


93 CSE 1615 


Chess 


05/13/94 


93 CSE 1632 


Morrison 


06/14/94 


93 CSE 1635 


Reilly 


06/17/94 


93 CSE 1637 


Reilly 


06/29/94 


93 CSE 1640 


West 


06/14/94 


93 CSE 1641 


Nesncw 


07/25/94 


93 CSE 1643 


Nesncw 


07/25/94 


93 CSE 1644 


Morgan 


08/02/94 


93 CSE 1645 


Morgan 


08/10/94 


93 CSE 1646 


Morgan 


08/02/94 


93 CSE 1648 


Bee ton 


05/19/94 


93 CSE 1649 


Bee ton 


07/20/94 


93 CSE 1654 


Mann 


05/24/94 


93 CSE 1655 


Mann 


05/17/94 


93 CSE 1715 


Gt^ 


05/23/94 


93 CSE 1743 


Nesncw 


07/07/94 


93 CSE 1757 


Morgan 


08/02/94 


93 CSE 1761 


Bee ton 


06/29/94 


94 CSE 0095 


West 


04/19/94 


94 CSE 0142 


Chess 


08/16/94 


94 CSE 0266 


Morgan 


08/02/94 


94 CSE 0300 


Gray 


06/27/94 


94 CSE 0324 


Nesnow 


07/25/94 


94 CSE 0402 


Morgan 


08/02/94 


94 CSE 0494 


West 


07/29/94 



JUSTICE 



Alarm Systems Licensing Board 

AlarTn Systems Licensing Board v. George P. Baker 

Private Protective Services Board 



93 DOJ 0457 



Nesncw 



03/10/94 



Rex Allen Jefferies v. Pri\ate Protective Services Board 
Larry C. Hopkins v. Private Protective Services Board 
Gregory K. Brooks v. Private Protective Services Board 
Stephen M. Rose v. Private Protective Services Board 
Lemuel Lee Clark Jr. v. Pri\ate Protective Services Board 
Dexter R. Usher v. Pri\ate F*rutective Services Board 



93 DOJ 0647 


Reilly 


08/01/94 


93 DOJ 1618 


Morrison 


03/07/94 


94 DOJ 0008 


Nesnow 


06/28/94 


94 DOJ 0359 


Nesncw 


05/19/94 


94 DOJ 0360 


Nesncw 


05/19/94 


94 DOJ 0648 


Reilly 


08/15/94 



Training and Standards Division 



Curtiss Lance I^Dleal v. Criminal Justice Ed. & Training Slds. Comm. 
Willie David Moore v. Criminal Justice Ed. & Training Stds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Skis. Comm. 
Steven W. Wray v. Sheriffs Education & Training Standards Comm. 
J. Stevan North v. Sheriffs' Education & Training Standards Comm. 
Gregory Blake Manning v. Criminal Justice Ed. & Training Skis. Comm. 
Russell Pinkellon Jr. v. Sheriffs' Education & Training Slds. Comm. 
William Franklin Sheetz v. Sheriffs* Education & Training Side. Comm. 
Nelson F^con v. Sheriffs' Education & Training Side. Comm. 



93 DOJ 0231 


Chess 


03/28/94 


93 DOJ 1071 


Nesnow 


04/11/94 


93 DOJ 1409 


GiBy 


03/03/94 


93 DOJ 1803 


Chess 


06/29/94 


94 DOJ 0040 


Chess 


06/16/94 


94 DOJ 0048 


Gray 


03/29/94 


94 DOJ 0118 


Gray 


08/10/94 


94 DOJ 0196 


Chess 


06/16/94 


94 DOJ 0611 


Mann 


08/12/94 



9:3 NCR 218 



859 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



MORTUARY SCIENCE 

Mortuary Science v. Perry J. Brown, & Brown's Funeral Dircctore 
PUBLIC EDUCATION 



93 BMS 0532 Chess 



NaDcy Walson v, Boaid of Education 93 EDO 0234 

Janet L. Wilcox v. Carteret County Boaid of Education 93 EDC 0451 

Annice Granville, Phillip J. Granville v. Onslow County Bd. of Education 93 EDC 0742 

Mary Ann SciuUo & Frank Sciullo on behalf of their minor child, 94 EDC 0044 
Samuel W. Sciullo v. State Boaid of Education 



STATE HEALTH BE3>iEFITS OFFICE 

Linda C. Campbell v. Teacheis & St Emp Major Medical Plan 
Timothy L. Coggins v. Teachem' & St Emp Comp Major Med Plan 

STATE PERSONNEL 

Agricultural and Technical State University 

Linda D. Williams v. Agricultuol and Technical State University 
Juanila D. Murphy v. Agricultural and Technical State Univeisity 
Thomas M. Simpson v. Agricultuial and Technical State Univereity 
Pricella M. Curtis v. A&T State Univereity Curriculum & Instruction 

Department of Agriculture 

Donald H. Crawfoid v. Department of AgricultuK 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North CaroHna Central University 

Ha-Vilyah Ha-She'B v. NCCU 

Cherry Hospital 

Charles F. Fields v. Cherry Hospital 

Department of Commerce 

Ruth Daniel-Itrty v. Department of Commerce 

Department of Correction 

Leiand K. Williams v. Department of Correction 

Elrqy Lewis v. North Central Area - Dept of Correction, Robert Lewis 

Steven R. Kellison v. Department of Correction 

Bert Esworthy v. Department of Correction 

Merron Burrus v. Department of Correction 

Lewis Alsbrook v. Department of Correction, Morrison Youth Institution 

Junius C. I^e v. Dept. of Correction, Secy. Franklin Freeman 

Richaid Hopkins v. Department of Correction 

Alfred B. Hunt v. Department of Correction 

Charles Home v. Equal Emp. Opportunity Officer & Dept. of Correction 

Adrian E. Graham v. Intensive Probation/Ikrole 



93 INS 0410 
93 INS 0929 



93 OSP 0089 
93 OSP 0708 

93 OSP 1393 

94 OSP 0748 



93 OSP 0875 



94 OSP 0498 



93 OSP 0725 



Chess 



03/28/94 



Chess 


02/28/94 


9:2 NCR 108 


Mann 


02/21/94 




Mann 


08/01/94 


9:11 NCR 863 


Gray 


07/22/94 





Becton 04/22/94 

Morrison 03/04/94 



Chess 03/23/94 

Morrison 03/16/94 

Gray 03/24/94 

Gray 08/17/94 



94 OSP 0108 Reilly 05/23/94 



93 OSP 1097 Reilly 04/29/94 



Becton 04/13/94 



Morrison 06/15/94 



03/04/94 



91 OSP 1287 


Chess 


02/22/94 


92 OSP 1770 


Becton 


05/24/94 


93 OSP 0283 


Chess 


06/15/94 


93 OSP 0711 


Chess 


04/21/94 


93 OSP 1145 


West 


06/01/94 


93 OSP 1739 


West 


07/20/94 


93 OSP 1794 


Mann 


07/08/94 


94 OSP 0041 


Chess 


06/16/94 


94 OSP 0243 


Reilly 


04/20/94 


94 OSP 0244 


Ncsnow 


06/16/94 


94 OSP 0261 


Morrison 


04/26/94 



9:4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



9:6 NCR 395 



Eastern Correctional Institution 



Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 
Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 

Guilford Correctional Center 

Ann R. Williams v. Guilford Correctional Center #4440 



94 OSP 0160** 
94 OSP 0256** 



94 OSP 0428 



Nesnow 
Nesnow 



West 



07/20/94 
07/20/94 



06/22/94 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



860 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



90 OSP 0239 


Chess 


04/28/94 


91 OSP 0401 


West 


03/18/94 


92 OSP 1463 


ReiUy 


03/21/94 


94 OSP 0572 


Mann 


07/12/94 



Cosmetic Art Examiners 

Mary Quaintancc v. N.C. Slate Boaid of Cosmetic Art ExamineiB 94 OSP 0372 Chess 06/14/94 

Department of Crime Control and PubUc Strfety 

Don R. Massenbur^g v. Department of Crime Control & Public Safety 
Fred L. Kearney v. Department of Crime Control & Public Safely 
Sylvia Nance v. Department of Crime Control & Public Safety 
Lewis G. Baker v. Crime Control & Public Safely, Office Aij. General 

Durham County Health Department 

Lylla Denell Stockton v. Durham County Health Department 93 OSP 1780 Gray 05/25/94 

EUzabeth Gty State University 

James Charles Knox v. Elizabeth City State University 94 OSP 0207 Gray 06/17/94 

Employment Security Commisdon of North Carolina 

Rejeanne B. LeFrancois v. Emplcyment Security Commission of N.C. 93 OSP 1069 West 04/08/94 

Department of Environment, Health, and Natural Resources 

Di\ision of Marine Fisheries 

William D. Nicely v. Environment, Health. & Natural Resources 92 OSP 1454 Becton 05/04/94 

FayetteviUe State University 

Roscoe L. Williams v. FayetteviUe Stale University 93 OSP 0487 West 06/22/94 

Department of Human Resources 

Inez Lalta v. Department of Human Resources 

Charia S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 

David R. Rodgers v. Timmy Summerville, Stonewall Jackson School 

Craven County Department of Social Senices 

Shirley A. Holland v. Craven Cty. Dept. /Social Services & Craven Cly. 
Nettie Jane Godwin (Lawhom) v. Craven Cty. DSS & Craven Cty. 
Violet P. Kelly v. Craven Cty. Dept. of Social Services & Craven Cty. 

Durham County Department of Social Services 
Belinda F Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 93 OSP 0728 Chess 04/1 1/94 

Mayn-ood County Department of Social Services 
Dorothy Morrow v. Haywood County Department of Social Services 94 OSP 0186 West 06/17/94 

Pamlico County Department of Social Services 
Mrs. Dietra C. Jones v Pamlico Department of Social Services 94 OSP 0251 Chess 08/09/94 

Lee County Health Department 
James Shackleion v. Lee County Health Department 94 OSP 0344 Gray 08/17/94 

Mental Health/Mental Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 93 OSP 1604 Becton 03/18/94 



93 OSP 0830 


Becton 


03/28/94 


93 OSP 1762 


Gr^ 


03/03/94 


93 OSP 0047 


Gray 


05/06/94 


94 OSP 0087 


Chess 


03/16/94 



9:5 NCR 333 



93 OSP 1606 


Gray 


07/01/94 




93 OSP 1607 


Gray 


07/18/94 


9:9 NCR 655 


93 OSP 1805 


Reilly 


07/05/94 





861 



9:11 



NORTH CAROUNA REGISTER 



September 1, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Wik£ County Mental Health, Developmenkzl Disabilities, and Substance Abuse Senices 
Julia Morgan Brannon v. Wake County MH/DD/SAS 94 DSP 0214 



Reilly 



04/14/94 



N.C. State University 

Laura K. Reynolds v. N.C. State Univeraity - Dept. of Public Safety 

Department of Transportation 

Phyllie W. Newnam v. Department of Transporfation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transporfation 

Betsy Johnston PDwell v. Department of Transporfation 

Arnold Craig v. Samuel Hunt, Secretary Department of Transporfation 

Susan H. Cole v. Department of Transporfation, Div. of Motor Vehicles 

Clyde Lem Hairston v. Department of Transporfation 

Darrell H. Wise v. Department of Transporfation 

Henry C. Puegh v. Department of Transporfation 

Ketmeth Ray Harvey v. Department of Transporfation 

Michael Bryant v. Department of Transporfation 

University of North Carolina at Chapel Hill 

Eric W. Browning v. UNC-Chapel Hill 

UNC Hospitals 

Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect. 

Wxke County School System 

Lula Mae Freeman v. Wake County School System 

The Whitater School 

Dwayne R. Cooke v. The Whitaker School 

STATE TREASURER 

Retirement Systems Division 

Molly Wiebenson v. Bd./Trustees/Teachera' & State Employees' Ret. Sys. 
Judith A. Dorman v. Bd./Trustees/Teacheis' & State Emplcyces' Ret. Sys. 
Nathan Fields v. Bd./Tnjstees/Teacheis' & State Emplcyees' Ret. Sys. 
John C. Russell v. Bd./Trustees/Teacheis' & State Employees' Ret. Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 
Cormie B. Grant v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys. 
James E. Walker, Ind. & Admin for the Estate of Sarah S. Walker v. Bd./ 

Trustees/N.C. Local Govt. Emp. Ret. System 
Elizabeth M. Dudley v. Bd. /Trustees/Teachers' & State Emps' Ret. Sys. 
Kenneth A. Glerm v. Bd./Trustees/Teacheis' & St Employees' Ret. Sys. 
Joseph Fulton v. Bd./Tnistees/TeachetB' & Stale Employees' Ret. Sys. 
Deborah W. Stewart v. Bd./Trustees/Teacheis' & State Employees' 

Ret. Sys. and Anthotiy L. Hope & Derrick L. Hope 

UNIVERSITY OF NORTH CAROLINA 

Nixon Omolodun v. UNC Physicians and Associates 



92 OSP 0828 Morgan 05/26/94 



92 OSP 1799 


Morgan 


08/11/94 






93 OSP 0297*" 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500*' 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 






93 OSP 0586 


Nesnow 


07/11/94 






93 OSP 0908 


Morrison 


07/15/94 






93 OSP 0944 


Chess 


02/28/94 






93 OSP 1353 


Gray 


07/26/94 






93 OSP 1710 


Nesnow 


05/24/94 






94 OSP 0423 


Morrison 


08/17/94 






94 OSP 0728 


Chess 


08/15/94 







93 OSP 0925 



94 OSP 0509 



94 OSP 0576 



94 OSP 0328 



Morrison 05/03/94 



Morrison 06/15/94 



Morrison 06/28/94 



Chess 



06/02/94 



9:5 NCR 342 



92 DST 0015 


Morgan 


05/26/94 


9:6 NCR 


403 


92 DST 0223 


Morgan 


08/11/94 






93 DST 0161 


Morrison 


05/18/94 






93 DST 0164 


West 


03/07/94 






93 DST 0785 


Bee ton 


03/18/94 


9:1 NCR 


68 


93 DST 0883 


Chess 


06/15/94 






93 DST 1054 


Becton 


05/31/94 


9:7 NCR 


490 


93 DST 1474 


Nesnow 


03/28/94 






93 DST 1612 


Morrison 


05/18/94 






93 DST 1731 


Becton 


05/25/94 






94 DST 0045 


Nesnow 


07/25/94 


9:10 NCR 


768 



94 UNC 0295 Chess 



06/27/94 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



862 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ONSLXDW 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 EDC 0742 



ANNICE GRANVILLE 
PHILLIP J. GRANVILLE, 

Petitioner, 



ONSLOW COUNTY BOARD OF EDUCATION, 

Respondent, 



FINAL DEaSION 



This contested case was heard in Jacksonville, Onslow County, North Carolina, beginning on the 10th 
day of May, 1994, and continuing through May 12, 1994. The record closed with the completion of the 
transcript which was filed in the Office of Administrative Hearings on June 15, 1994. 



APPEARANCES 



For Petitioners: 



For Respondent: 



Mrs. Annice Granville 

Mr. Phillip J. Granville 

504 Redwood Place 

Jacksonville, North Carolina 28540 

Petitioners - pro se 

Ann L. Majestic, Esquire 

Tharrington, Smith & Hargrove 

209 Fayetteville Street Mall 

P. O. Box 1151 

Raleigh, North Carolina 27602-1151 

Attorney for Respondent 



WITNESSES 



For Petitioners: 



Stephen Hooper 
Aimice Granville 



For Respondent: 



Carolyn King 
David Gamer-McGraw 
Linda Sutherland 
Opal Amos 
Lynn Mills 
Tracey Amey 
Elaine Justice 
Thomasine Kennedy 



For Petitioners: 



EXHIBITS 



Petitioners' Exhibits # P2, 3, 5, 13, 15, 16, 17 and 18b. 
Respondent's Exhibits # R28, 39, 41, 43, 51 and 52. 



863 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



CONTESTED CASE DECISIONS 



For Respondent: Respondent's Exhibits # Rl, la, lb. Id, 2, 2a, 4, 6, 8, 10, 11, 16, 17, 18, 

20, 21, 22, 23, 27, 29, 31, 32, 34, 35, 36, 37, 37a, 38, 40, 42, 43, 45, 47, 
48, 50, 56, 57, 60, 61 and 67. 

ISSUES 

1. Was the educational program proposed by Respondent for Sean Granville for 1993-94 
inappropriate within the meaning of state and federal special education laws? 

2. Was the educational program provided to Sean Granville by Grace Baptist School for 1993-94 
appropriate and in substantial compliance with the requirements of state and federal special education laws? 

3. Are Petitioners entitled to reimbursement for the cost of Sean's education placement at Grace 
Baptist School for the 1993-94 school year? 

4. Are Petitioners entitled to prospective placement and costs at Grace Baptist School for the 
1994-95 school year? 

STIPULATIONS 

On May 10, 1994, the parties filed a Prehearing Order which contained, inter alia , the following 
Stipulations: 

[3.] In addition to the other stipulations contained herein, the parties hereto stipulate and 
agree with respect to the following undisputed facts: Sean Granville is a sixth grade student 
eligible for enrollment in respondent school district. During the 1993-94 school year Sean 
has been enrolled in Grace Baptist School in Onslow County. During the 1992-93 school 
year Sean was enrolled as a fifth grade student at Northwoods Elementary School in the 
Onslow County Public School System. Sean has been identified as a student with a learning 
disability and a speech impairment. 

12 & 13. The Petitioners and Respondent contend that the contested issues to be tried 

by the Administrative Law Judge are as follows: 

a. Was the educational program proposed by Respondent for Sean 
Granville for 1993-1994 inappropriate within the meaning of state 
and federal special education laws? 

b. Is the educational program provided to Sean Granville by Grace 
Baptist School for 1993-1994 appropriate and in substantial 
compliance with the requirements of state and federal special 
educational laws? 

c. Are Petitioners entitled to reimbursement for the cost of Sean's 
educational placement at Grace Baptist School for the 1993-94 
school year? 

d. Are Petitioners entitled to prospective placement and costs at Grace 
Baptist School for the 1994-1995 school year? 

Based upon the Stipulations of the parties and by the greater weight of the evidence admitted at the 
hearing, the Chief Administrative Law Judge makes the following: 



9:11 NORTH CAROLINA REGISTER September 1, 1994 864 



CONTESTED CASE DECISIONS 



FINDINGS OF FACT 

1. Annice Granville and Phillip Granville (Petitioners) are citizens and residents of Onslow 
County, North Carolina, and are the parents of their minor child, Sean Granville (hereinafter Sean). Sean 
was bom on February 12, 1982, and currently is twelve years old. 

2. Respondent is the local education agency responsible for providing a free, appropriate public 
education to Sean. 

3. During the 1987-88 school year, Sean's kindergarten year, Sean was referred, identified and 
placed as a student with special needs based upon a speech impairment. Sean was provided with speech 
therapy services pursuant to an Individualized Education Plan (lEP). 

4. Respondent informed Petitioner of her notice and appeal rights as regards Sean's lEP and 
Petitioner acknowledged receipt of the Parental rights and Appeals Procedure on November 17, 1987. 

5. During the 1988-89 school year, Sean's first grade year, he v/as recommended by his teachers 
for further testing because of academic difficulties. 

6. In the spring of 1989, after completion of testing, Sean was identified and placed as a student 
with learning disabilities in the area of written language, based on discrepancies between his IQ and his written 
expression and reading skills. Sean was mainstreamed or placed in the regular classroom for most of the 
school day, with special services provided through "pull-out" from the classroom and consultation with the 
regular classroom teacher provided by the exceptional children's teachers. Sean was removed from the regular 
classroom less than 21 % of the day. His "placement" on the continuum of special educational services was, 
therefore, "regular class" placement. 

7. Sean's lEP for the period from March 16, 1989, through March 15, 1990, addressed both 
Sean's sp)eech deficiency and his learning disability. 

8. Respondent again informed Petitioner of her notice and appeal rights as regards Sean's 
placement and she acknowledged receipt of the Handbook of Parents Rights on March 16, 1989. 

9. Sean's lEP was reviewed on or about March 14, 1990, during his second grade year. The 
lEP maintained his placement as a regular student; i.e., receiving services outside the regular education 
environment for less than twenty-one percent (21 %) of the day. The goals in the revised lEP addressed Sean's 
needs in the areas of reading recognition, comprehension and word attack skills. 

10. During Sean's third grade year (1990-91), Petitioners placed him at the St. Francis of Assisi 
School, a private parochial school. Respondent continued to provide exceptional children's services to Sean 
in the areas of speech and language and learning disabilities. 

11. Respondent reviewed Sean's services on or about March 8, 1991. The resultant lEP 
addressed both Sean's speech deficiency and his learning disability. 

12. Sean enrolled at Respondent's Northwoods Elementary School for the 1991-92 school year, 
his fourth grade year. Respondent continued to provide Sean exceptional children's services through a regular 
classroom placement, i.e., less than twenty-one percent (21%) of the day. 

13. Respondent reviewed Sean's lEP again in March of 1992 and recommended continuation of 
services on a regular basis, noting that "student is able to be successful in regular educational settings. ..." 
The lEP stated short-term objectives including improvement of reading comprehension, spelling, handwriting, 
and speech. The lEP also contained testing modifications. 



865 9:11 NORTH CAROLINA REGISTER September 1, 1994 



CONTESTED CASE DECISIONS 



14. Sean made satisfactory academic progress and benefitted educationally from special education 
services under the lEP. His final grade period for 1992-1993 (fifth grade) showed: Reading - B; Language - 

B; Spelling - C; handwriting - C; Social Studies - C; Mathematics - C; Science - B; and Health - B. Special 
education services were rendered in a competent manner with coordination between the regular classroom and 
special education teachers. 

15. Respondent completed the next annual review of Sean's lEP on or about March 19, 1993. 
Instructional objectives in the lEP for the period from March 19, 1993, to March 18, 1994, included writing 
a four-sentence paragraph, story writing, legible handwriting, spelling at eighty percent (80%) accuracy, 
improvement of reading comprehension, vocabulary enhancement, and a continuation of speech therapy. The 
revised IBP contained expanded testing modifications including answers to be recorded by the test proctor, 
extended time for completion of multi-part tests, and testing in a separate room. 

16. During the period Sean attended schools operated by Respondent, and was receiving 
exceptional children services, his diagnostic tests, including end of course testing and California Achievement 
tests, indicated an overall pattern of progress in Sean's identified areas of exceptionality. 

17. During the Spring of 1993, Respondent called a meeting of Sean's teachers and other school 
persoimel with expertise in learning disabilities to discuss with Petitioner her concerns about Sean's progress. 

18. At the Spring 1993 meeting Respondent recommended that Sean undergo additional testing 
including evaluation for potential neurological deficits. Petitioner initially declined to grant permission for 
this additional testing. 

19. On or about May 14, 1993, Petitioner agreed to an evaluation to assess Sean's level of 
educational performance and his preferred learning styles. Petitioner later indicated that she was agreeable 
to a psychological evaluation of Sean. Respondent subsequently paid for an evaluation by Dr. Greg Walton, 
a private psychologist. Dr. Walton's evaluation found that Sean had a significant deficit in his written 
language abilities, apparently arising from an attention/concentration deficit as well as a finding of intellectual 
strengths. Sean's verbal and full scale scores placed him in the average range with performance scale at the 
high average range (WISC - III) . Results from the Bender Motor Gestalt test indicate Sean has a visual-motor 
deficit. The administration of the Woodcock-Johnson Psychoeducational test indicated that Sean has a 
significant visual-perceptual-motor deficit. 

20. On July 14, 1993, Petitioner filed a petition for a contested case hearing concerning Sean's 
educational placement. 

21. Based upon the information obtained through the additional educational and psychological 
evaluations completed during the summer of 1993, Respondent revised Sean's placement in a proposed lEP 
for the 1993-94 school year. Respondent reviewed the proposed lEP with Petitioner in an August 20, 1993, 
meeting. 

22. The proposed lEP included specific goals in the area of reading, visual percep- 
tion/compensation skills, fine motor skills, written expression, and speech. Respondent also notified 
Petitioners that Sean might qualify for services in mathematics. The proposed lEP included specific strategies 
intended to remediate Sean's learning disability, including blocking, key words location techniques, color 
coding and fading, use of a computer, mnemonics, and other strategies. 

23. Sean would have attended Northwoods Middle School had he enrolled in Respondent's school 
system for the 1993-94 school year. Northwoods Middle School operates an inclusion program for many of 
its exceptional students through which special education services are provided in the regular classroom. The 
proposed lEP would have placed Sean in this inclusion program. Respondent explained the inclusion program 
to Petitioner at the August 20, 1993, meeting. 



9:11 NORTH CAROLINA REGISTER September 1, 1994 866 



CONTESTED CASE DECISIONS 



24. Petitioners unilaterally elected not to enroll Sean at Northwoods Middle School for the 1993- 
94 school year and instead enrolled him at Grace Baptist School, a private parochial school. 

25. Respondent agreed to provide speech therapy to Sean during the 1993-94 school year and to 
bear the costs of transporting Sean to and from speech therapy. 

26. Respondent also agreed to bear the expense of a neuropsychological evaluation of Sean. 

27. Sean was evaluated by Dr. Stephen Hooper on February 7, 1994. Dr. Hooper holds a PhD 
in School Psychology with a specialization in Child Clinical and Neuropsychology. He is an Assistant 
Professor of Psychiatry at the University of North Carolina and is Director of Psychology at the Center for 
Development and Learning at the UNC Medical School. Dr. Hooper also is Director of Child Adolescent 
Neuropsychology Consultation Services at the medical school. Dr. Hooper has accumulated extensive 
experience in evaluating children with suspected learning disabilities over the past seven years at UNC. 

28. Dr. Hooper summarized his evaluation of Sean, in part, as follows: 

[S]ignificant deficits were present in his attention and memory abilities. 
Sean demonstrated pervasive attentional difficulties and his short-term 
memory abilities were disproportionately low when compared to his 
demonstrated level of intellectual functioning. When these findings are used 
in tandem with his most recent psychoeducational and speech/language 
evaluations, which documented specific learning difficulties in the academic 
areas of reading, writing, and arithmetic, and a moderate phonological 
processing disorder, respectively, Sean clearly presents as an individual in 
need of special educational services and he will remain at risk for ongoing 
learning difficulties. Further, his social and emotional development also has 
been affected, in part, by his ongoing learning struggles, and this area of 
development should be monitored carefully as well. 

(Dr. Hooper's evaluation as to Sean's disabilities are found as a feet.) 

29. Dr. Hooper testified that because of Sean's disability: "There needs to be some curricular 
modifications for this youngster, regardless of where he may find himself schoolwise. " The undersigned finds 
as a feet that curricular modifications are necessary to provide Sean with an appropriate education. 

30. Dr. Hooper's report included a series of specific recommendations for Sean. The key 
findings are summarized as follows: 

a. A trial of stimulant medication to be monitored daily by Sean's 
school/teacher in conjunction with a school psychologist; 

b. Special education services to address Sean's reading, writing, and arithmetic 
needs, with related services for speech/language impairments; 

c. Consultation with an occupational therapist, access to a computer and 
assistance in gaining word processing skills; and 

d. The use of specific instructional strategies, including an increase in the 
personal relevance and meaningfulness of Sean's school work, "staging" his writing tasks, 
employing alternative testing methods that take advantage of Sean's strengths in recognition 
memory, routine repetition of materials, and the use of recall strategies including mnemonics, 
chunking, verbal mediation and verbal rehearsal. 



867 9:11 NORTH CAROUNA REGISTER September 1, 1994 



CONTESTED CASE DECISIONS 



3 1 . Because of indications that Sean's difficulty in school was affecting his social and emotional 
development, Dr. Hooper also advised that his teachers avoid potential embarrassment in the classroom 
setting. 

32. Dr. Hooper's opinion was that Sean should be taught by a teacher who was both sensitive 
to his learning disability and trained to address learning disabilities. 

33. Dr. Hooper testified and the undersigned finds as a fact that the lEP proposed by Respondent 
for the 1993-94 school year contained provisions that addressed Sean's learning disabilities and contained 
many of Dr. Hooper's recommended strategies. 

34. After Respondent received Dr. Hooper's report, it issued a May 3, 1994, letter to Petitioner 
that proposed to supplement Sean's lEP with additional instructional strategies identified by Dr. Hooper. 

35. Dr. Hooper's opinion after reviewing several of Sean's most recent lEPs was that these lEPs 
were appropriate. 

36. The curriculum at Grace Baptist School is based on materials provided by the Accelerated 
Christian Education (ACE) program. The curriculum is based on workbooks called "paces," which students 
complete on their own schedule and initiative. Students are required to repeat a "pace" until they are able 
to score 80 percent or higher on an examination at the end of the "pace" . 

37. Linda Sutherland is Sean's elementary teacher at Grace Baptist School. 

38. While the ACE program is individualized in the sense that students work at different levels, 
the ACE curriculum as taught at Grace Baptist School does not vary from student to student. 

39. Sean, in the opinion of Ms. Sutherland, is progressing commendably in the structure of 
education at Grace Baptist School and Sean appears to be comfortable in this educational surrounding. Ms. 
Sutherland and Sean appear to have a good student-teacher relationship. 

40. Mrs. Sutherland testified, and the undersigned finds as a fact, that she lacks any specialized 
training in learning disabilities or programs for exceptional children and that no teacher at Grace Baptist is 
certified to teach exceptional children. 

41. Grace Baptist School did not utilize any diagnostic tests other than ACE "paces" in 
determining the appropriate curriculum for Sean. 

42. Ms. Sutherland did not believe that Sean required special education services and that she had 
not adopted suggestions from Dr. Hooper's report to modify Sean's curriculum or her teaching strategies. 

43. While the evidence indicated that the curriculum at Grace Baptist School may be appropriate 
for many students, this school does not have the ability to provide technical expertise or specialized strategies 
to students with learning disabilities. The curriculum at Grace Baptist School is not readily adaptable to 
address learning disabilities such as those of Sean and none of the faculty at Grace Baptist School has any 
special training in teaching students with learning disabilities or other exceptionalities. Grace Baptist School 
has not modified its curriculum to address Sean's specific learning disability. 

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . The Office of Administrative Hearings has jurisdiction over the person and subject matter of 

this contested case pursuant to Chapters 115C and 150B of the North Carolina General Statutes. 



9:11 NORTH CAROLINA REGISTER September 1, 1994 868 



CONTESTED CASE DECISIONS 



2. As a result of Sean's specific learning disability as diagnosed by Dr. Hooper and as defined 
in Section 1509H of the North Carolina Procedures Governing Programs and Services for Children with 
Special Needs, Sean is a child with "special needs" entitled to special education and related services pursuant 
to the Individual's With Disabilities Education Act, 20 U.S.C. 1401, et seg., N.C. Gen. Stat. 106, et seq.. 
and the North Carolina Procedures Governing Programs and Services for Children with Special Needs. 

3. Respondent has complied with all procedural requirements of the state and federal special 
education laws. Sean's latest lEP was devised based upon the testing and evaluation of two experts. 

4. The individualized educational program (lEP), proposed by Respondent for Sean for the 1993- 
94 school year was appropriate within the meaning of state and federal special education laws. The proposed 
lEP contained teaching goals, teaching strategies, curricular modification and other features appropriate to 
address Sean's learning disability. Sean would have benefitted from remaining in the Respondent's school 
system to act upon the recommendations of the experts who evaluated Sean. 

5. The educational program provided to Sean by Grace Baptist School for the 1993-94 school 
year was not appropriate in light of his learning disability (there was no special education program) and this 
educational program is not in substantial compliance with the requirements of state and federal educational 
laws as applied to public institutions." 

6. Petitioners are not entitled to reimbursement for the cost of Sean's educational placement at 
Grace Baptist School for the 1993-94 school year because: (a) Respondents made available an educational 
plan and opportunities at Northwoods Middle School that would have provided Sean with a free and 
appropriate public education in the least (appropriate) restrictive environment; and (b) the program in which 
Sean was enrolled for the 1993-94 academic year was not appropriate to meet his special education needs. 

7. Petitioners are not entitled to prospective placement and costs at Grace Baptist School for the 
1994-95 school year for the reasons set forth in item 6 above and because Grace Baptist School is unable to 
offer expertise or services appropriate to address Sean's learning disability. 

Based upon the foregoing Stipulations, Findings of Fact and Conclusions of Law, the undersigned 
makes the following: 

FINAL DECISION 

Petitioner's requests for reimbursement from Respondent for the cost of Sean Granville's educational 
placement at Grace Baptist School for the 1993-94 school year and for prospective costs for tuition at Grace 
Baptist School for the 1994-95 school year are denied. 

NOTICE 

In order to appeal this Decision, the person seeking review must file a written notice of appeal with 
the North Carolina Superintendent of Public Instruction. The written notice of appeal must be filed within 
thirty (30) days after the person is served with a copy of this Decision. G.S. 115C-1 16(h) and (i). 



This the 1st day of August, 1994. 



Julian Mann, III 

Chief Administrative Law Judge 



**There is no specific finding or conclusion of law as to whether Sean is benefitting from his parochial 
school education. The evidence was not sufficient to make a finding. However, it is unnecessary to make 
such a determination once it is concluded that this parochial school's special education program is nonexistent. 



869 9:11 NORTH CAROLINA REGISTER September 1, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF NEW HANOVER 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

94 ABC 0257 



ALONZA MITCHELL 
Petitioner, 



ALCOHOLIC BEVERAGE CONTROL 
COMMISSION 

Respondent. 



RECOMMENDED DECISION 



FOR THE RESPONDENT: 



The above-entitled matter was heard before Fred G. Morrison, Jr. , Senior Administrative Law Judge, 
on June 16, 1994, in New Hanover County, North Carolina. 

This hearing was initiated at the request of the Petitioner after the Respondent disapproved his 
application for ABC permits at his establishment known as Club New World located at 2000 Saw Mill Road, 
Leland, North Carolina. 

APPEARANCES 

FOR THE PETITIONER: Andrew L. Waters 

Attorney at Law 
Post Office Box 936 
Wilmington, NC 28402 
Phone: (910) 343-0610 

Glenn B. Lassiter, Jr. 
Deputy General Counsel 
North Carolina ABC Commission 
Post Office Box 26687 
Raleigh, NC 27611-6687 

ISSUE 

Whether the Petitioner's application for ABC permits was properly denied? 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses and other competent and 
admissible evidence, it is found as a feet that: 

1. Sometime prior to January 14, 1994, the Petitioner filed an application for ABC permits for 

on premise malt beverage, unfortified wine, fortified wine, and mixed beverages at the location known as Club 
New Worid, 2000 Saw Mill Road, Leland, North Carolina. 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



870 



CONTESTED CASE DECISIONS 



2. By Notice of Rejection from the Respondent dated February 2, 1994, the Petitioner was 
advised that the requested ABC permits were denied for the following reasons: 

a. Local government objections to location G.S. 18B-901(b); 

b. Location not a suitable place to hold ABC permits due to reputation of the location 
G.S. 18B-901(c). 

3. Petitioner filed a timely petition for a contested case hearing alleging that the agency: 

a. Deprived him of property rights; 

b. Otherwise substantially prejudiced his rights; and based on these facts the agency has 
exceeded its authority or jurisdiction; 

c. Acted erroneously; 

d. Failed to use proper procedure; 

e. Acted arbitrarily or capriciously; or 

f. Failed to act as required by law or rule. 

4. ALE agent, Mark Senter, objected to the location because of a previous order of revocation 
dated January 14, 1994 and because of potential crowd control problems. He felt the limited number of 
deputy sheriffs on duty at those times the club would be open might be inadequate due to the number of 
patrons regularly in attendance. 

5. The Petitioner was in no way involved in the matter that resulted in the previous order of 
revocation and is and has no relationship with the owner and prior operator of the club except as lessee. 
Further, there is no evidence that the club's crowd control, its security and law enforcement coverage in the 
community is less than adequate. 

6. By Local Government Opinion Form, Mike Speck, ABC Officer, objected to the issuance of 
permits. The form alleged that Mitchell's earlier application for permits for Club Flavors, located at 5307 
Market Street, Wilmington, N.C. was denied on April 7, 1992. It alleged that this denial resulted in a permit 
revocation which rendered Mr. Mitchell ineligible to apply or secure an ABC permit for at least 3 years. 

7. The April 7, 1992 denial resulted in the revocation of the temporary permits issued pending 
Commission decision. The applicant never possessed the permanent permits for which he applied. As a 
matter of course, any application that is denied results in the revocation of its temporary permits and whether 
such revocation initiates the three year ineligibility is at best subject to varying interpretation. 

8. The Local Government Opinion Form alleged pending charges against the applicant for 
falsifying information on the Club New Vtbrld application. It was alleged that the falsification consisted of 
improperly spelling his name and his failure to mention the Club Flavors revocation. The applicant denied 
the accusations of filing a false application, stating that he used the spelling of his name he has been 
accustomed to and used since high school and explained that his negative response to the question "Whether 
you had any permit previously revoked within three years?", was the result of his discussion with both the 
regional and state ABC offices and his resultant understanding that the question referred to a revocation of 
a permanent permit, which he never possessed. 

9. The Local Government Opinion Form alleged pending charges against the applicant for 
possession of spirituous liquors upon the premises where possession or consumption was not authorized by 
ABC Law. The applicant denies illegal possession of spirituous liquors and there was no showing convincing 
this trier of fact that such illegal possession took place. 

10. The form also reflected Officer Speck's objection to the location based upon past reputation. 
There was no elaboration by the Respondent on the reputation of Club New Vtbrld other than the reference 
to the January 14, 1994, revocation discussed hereinabove. At that time the club was under different 
ownership and no similar violation of ABC laws was introduced. The Petitioner testified as to the good 
reputation of the club. 



871 9:11 NORTH CAROUNA REGISTER September 1, 1994 



CONTESTED CASE DECISIONS 



11. Alonza Mitchell is a suitable person to hold an ABC permit. 

12. The location of 2000 Saw Mill Road, Leland, North Carolina is suitable. 

13. There are no statutory reasons why ABC permits should not be allowed at Club New World. 

CONCLUSIONS OF LAW 

1 . The North Carolina Alcoholic Beverage Control Commission has the authority to determine 
the qualifications of an applicant and the suitability of a location for the issuance of ABC permits, and to issue 
or deny issuance of permits according to the ABC law. 

2. Alonza Mitchell is a suitable person to hold a permit, and Club New World is a suitable 
location for a permit. 

3. The Petitioner's application for ABC permits was improperly denied. 

RECOMMENDED DECISION 

I hereby recommend that the Respondent's decision to disapprove Petitioner's application be reversed, 
and the permits be issued to Alonza Mitchell. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Alcoholic 
Beverage Control Commission. 



This the 27th of July, 1994. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



9:11 NORTH CAROLINA REGISTER September 1, 1994 872 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory: The major subdivision of the NCAC Is the title. Each major 
department In the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down Into chapters \'t'hlch shall be numerical In order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPIER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examines 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


landscape Architects 


26 


16 


Public Education 


I landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretar>' of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & T unA Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



873 



9:11 



NORTH CAROLINA REGISTER 



September 1, 1994 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 3 - May 

227 - 305 4 - May 

306 - 348 5 - June 

349 - 411 6 - June 

412 - 503 7 - July 

504 - 587 8 - July 

588 - 666 9 - August 

667 - 779 10 - August 

780 - 876 11 - September 



Unless otherwise identified, page references in this Index are to proposed rules. 



AGRICULTURE 

Plant Industry, 127 

COMMERCE 

Alcoholic Beverage Control Commission, 423 
Energy Division, 4 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, Division of, 243 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 443, 825 

DEM/ Air Quality, 80, 805 

Departmental Rules, 254 

Environmental Management, 81, 258, 352, 616 

Health Services, 323, 370, 445, 834 

Marine Fisheries Commission, 820 

Mining Commission, 442 

NPDES Permit, 3, 232 

Radiation Protection Commission, 678 

Solid Waste Management, 171, 364 

Water Resources, 165, 255 

Wildlife Resources Commission, 38, 42, 84, 358, 830 

Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2, 312, 506, 594 

GENERAL STATUTES 

Chapter 150B, 780 



9:11 NORTH CAROLINA REGISTER September 1, 1994 874 



CUMULATIVE INDEX 



GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123, 227, 306, 349, 412, 504, 588, 667 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Departmental Rules, 668 

Facility Ser%'ices, 4, 128, 423, 509, 668 

Medical Assistance, 318, 440, 513, 597 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430 

Social Services, 136, 595, 802 

Vocational Rehabilitation Services, 434 

ESDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99 

INSURANCE 

Life and Health Division, 525 
Medical Database Commission, 605 
Multiple Employer Welfare Arrangements, 76 
Special Services Division, 76 

JUSTICE 

Alarm Systems Licensing Board, 351, 614, 804 

Criminal Justice Education and Training Standards Commission, 149 

Private Protective Ser\'ices, 802 

Sheriffs' Education & Training Standards Commission, 670 

State Bureau of Investigation, 234, 530 

LABOR 

Mine and Quarry Division, 239 
OSHA, 77, 160, 675 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Auctioneers Licensing Board, 836 

Barber Examiners, 563 

Chiropractic Examiners, 376 

Cosmetic Art Examiners, 280 

Landscape Architects, Board of, 95 

Medical Examiners, 192, 565 

Mortuary Science, 720 

Nursing, Board of, 45, 724 

Opticians, Board of, 845 

Optometry, Board of Examiners, 194 

Physical Therapy Examiners, 566 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96, 725 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

Professional Engineers and Land Surv^ors, 728 

Sanitarian Examiners, 730 



875 9:11 NORTH CAROLINA REGISTER September 1, 1994 



CUMULATIVE INDEX 



LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281, 378, 635, 742 

PUBLIC EDUCATION 

Elementary and Secondary Education, 375, 540 

SECRETARY OF STATE 

Land Records Management Division, 712 
Securities Division, 476, 616, 709 

STATE PERSONNEL 

Office of State Personnel, 477, 847 

TAX REVIEW BOARD 

Orders of Tax Review, 415 



TRANSPORTATION 

Highways, Division of, 85, 718 

Motor Vehicles, Division of, 89, 276, 542 



9:11 



NORTH CAROUNA REGISTER 



September 1, 1994 



876 



NORTH CAROLINA ADMINISTRATIVE CODE 



The full publication consists of 53 volumes, totaling in excess of 1 5 ,000 pages. It is supplemented monthly 
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